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HomeMy WebLinkAbout03-4998CARLISLE FIRST CHURCH OF GOD Appellant V. BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Law Land Use Appeal No. 03. qqq, NOTICE OF APPEAL CARLISLE FIRST CHURCH OF GOD, by and through its attorneys, Irwin, McKnight & Hughes, files this appeal from a decision of Borough of Carlisle Zoning Hearing Board, Cumberland County, under authority of Section 1002-A of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. l1002-A (herein the "Planning Code"), and in support thereof, avers as follows: 1. This Honorable Court has jurisdiction in this appeal pursuant to §l1002-A of the Planning Code, as reenacted, Act of December 21, 1988, RL. 1329, 53 P.S. §11002-A and §933 of the Judicial Code, as amended, 42 Pa. C.S.A. §933. 2. Appellant, Carlisle First Church of God, is a Pennsylvania not-for-profit church with its place o f worship 1 ocated a t 70 5 G1 endale Street, Carlisle, Cumberland County, Pennsylvania 17013 (herein "First Church"), and owner of certain real property located at this location (herein "the Property''). 3. Appellee is the Zoning Hearing Board of the Borough of Carlisle, Cumberland County, Pennsylvania (herein the "Board") which maintains offices at 53 West South Street, Carlisle, Pennsylvania 17013. 4. The Property is zoned as part of an R- 1 Low Density Residential District. 5. At the time that First Church constructed its existing place of worship, churches were a permitted use in the R-1 Low Density Residential District. 6. Due to a subsequent change in the Zoning Ordinance for the Borough of Carlisle, places of worship are currently permitted as a special exception under Borough's Zoning Ordinance. 7. On or about May 8, 2003, First Church filed with the Borough of Carlisle and its Planning and Zoning Codes Manager, Kenneth W. Womack, a Preliminary/Final Land Development Plan for the Property for the purpose of adding an addition to its existing building and parking area. 8. On or about May 12, 2003, the Carlisle Planning and Zoning Codes Manager determined that a special exception application was necessary in order for the Borough to approve the submitted Final Land Development Plan for First Church's addition project. 9. First Church appealed the Zoning Manager's decision to the Zoning Heating Board, the Board reviewed this matter at its public hearing on or about July 9, 2003. 10. The Board by a unanimous decision of three Board members present at the hearing upheld the Zoning Manager's determination that a special exception application was required. A 2 copy of said decision by the Board is attached as Exhibit "A" and incorporated herein by this reference. 11. The action of the Borough of Carlisle Zoning Hearing Board in determining that a special exception is needed in order for First Church to develop its property in accordance with its Final Land Development Plan was arbitrary, capricious, an abuse of discretion and contrary to law in that: a. The Carlisle Zoning Ordinance does not require a special exception application for the expansion of a use permitted by special exception when the use of the Property will not change; b. The Carlisle Zoning Ordinance does not require a special exception application for the expansion ora use permitted by special exception when the existing use as a church was a permitted use at the time of its construction and the use of the Property will not change; c. The Carlisle Zoning Ordinance does not require a special exception application for the expansion of a use permitted by special exception when the proposed expansion will not cause potential conflicts with adjacent uses; d. The Carlisle Zoning Ordinance not require a special exception application for the expansion of a use permitted by special exception when the proposed expansion meets all special exception use and dimensional requirements as set forth in the Carlisle Zoning Ordinance. 3 WHEREFORE, Appellant respectfully requests this Honorable Court deem that the Carlisle Borough Zoning Heating Board's determination is contrary to law and direct that a special exception application for expansion of the Property is not required for its proposed addition to its existing chumh facility. Respectfully submitted, HT & HUGHES J mettle, llughes, Esq. Supre}fie Cou~t_ ID. No. 58884 60 ~est Pomfi'et Street 9aflisle, Pennsylvania 17013 X,~/(717) 249-2353 Attorney for Appellant, Carlisle First Church of God Date: September 18, 2003 4 Zoning Hearing Board Borough of Carlisle ZHB Case No. 021-03 Date of Decision: July 9, 2003 Re: First Church of God, Appellant OPINION AND DECISION OF ZONING HEARING BOARD BACKGROUND After proper advertisement, the Board held a public hearing on Wednesday, July 9, 2003 in the Carlisle Borough Municipal Building located at 53 West South Street, Carlisle, Pennsylvania at 6:30 p.m. Three of the five members of the Zoning Hearing Board were present, they being Jeffrey H. Benjamin, Acting Chair, Jane Rigler, and, Jeffrey G. Bergsten. Absent were Chair, Ronald Simons, and member Henry Trefflnger. In addition, present were Pla~ming/Zoning/Codes Manager Kenneth W. Womack and Acting Solicitor, Robert G. Frey. Appellant appeals the determination made by the Zoning Officer on May 12, 2003 that an application for special exception must be submitted to the Zoning Hearing Board for the Plans submitted by the Appellant for the construction of an addition to Appellant's existing building. Present on behalf of the Appellant was James Hughes, Esquire. Because the matter before the Board was solely on the legal issue of the propriety of the Planning/Zoning/Codes Officer's determination that a special exception application was necessary, no evidence was presented. However, it was stipulated by the Borough that the Appellant's use of the property as a place of worship was a lawfully existing use and that because of Zoning Ordinance amendment since its original construction, Appellant's use of the property would currently be permitted as a special exception use in the Borough's R-1 Low Density Residential District. At the direction of the Zoning Hearing Board, the Borough confirmed that its records indicate that at the time the building permit for the church was issued in 1973, the property was located in the Borough's R-1 Residential District. A place of worship was a permitted use under the ordinance then in effect. The position of the Borough Planning/Zoning/Codes Manager on review of Appellant's Plans was that because Appellant's use of the property is permitted as a special exception, but no special exception had been previously issued by the Zoning Hearing Board and further because there appeared to be aspects to Appellant's plans which might warrant the imposition of conditions by Zoning Hearing Board, an application for special exception should be submitted to the Zoning Hearing Board for review and approval, as determined by the Zoning Hearing Board. The Appellant takes the position that its use of the property is a lawfully existing use permitted by special exception in the R-I District. Appellant asserts that its plans propose an expansion of buildings but no change in the use of the property and, therefore, no special exception application should be required merely because of the expansion of the buildings. Russell Bova, a ~aiIBIT Carlisle Zoning Hearing Board Case No. 021~03, Page I neighboring property owner spoke in support of the determination by the Planning/Zoning/Codes Manager asserting that special exception review by the Zoning Hearing Board was appropriate. DISCUSSION In the case ofPennridge Develol~ment Enterprises, Inc. v. Volovnic, 154 PA. Commonwealth Ct. 609, 624A.2d 674 (1993) the Commonwealth Court considered the issue of whether a use which was a non-conforming use under a prior Zoning Ordinance was converted to a conditional use when a subsequent zoning ordinance permitted that use in the district as a conditional use. The Court concluded that the ordinance change converted a non-conforming use to a conditional use thereby reversing the lower court and upholding the determination by the Township Board of Supervisors that a conditional use application was required. Based on the Pennridge decision, we conclude that the Appellant's use of its property as a place of worship is a lawfully existing use permitted by special exception in the R-1 Zoning District, even though it was a permitted use in 1973 when the church was built. The fact that Pennridge dealt with a conditional use rather than a special exception use is immaterial. The law regarding conditional uses and special exceptions is virtually identical. Sheetz v. Phoenixville Borough Council. PA Commonwealth Ct. ,804A.2d 113 (2002). The issue before the Board is whether the Appellant's expansion of its building requires an application for special exception before the Zoning Hearing Board since there has been no prior decision by the Zoning Hearing Board approving the special exception use. The Zoning Hearing Board by a unanimous decision of the three Board members present has determined that a special exception application is required. Section 255-177.A. clearly states that the purpose of the special exception process is "to allow a careful review of uses that have some potential of conflicts with adjacent uses or areas." The special exception procedure contemplates careful scrutiny by the Zoning Hearing Board of each special exception use. The Borough Ordinance gives the Zoning Hearing Board specific standards to consider in granting a special exception and allows the Zoning Hearing Board to impose reasonable conditions and safeguards in granting a special exception. Because of changes in the Zoning Ordinance over time, the Appellant's use, which is now permitted as a special exception, has never been reviewed by the Zoning Hearing Board. Therefore, any change in the Appellant's use of the property, whether that be to a different use or an expansion of the use through an expansion of the existing building requires special exception review by the Zoning Hearing Board pursuant to Section 255-177. The treatment of the Appellant is consistent with the procedure contained in the Borough Ordinance for the treatment of the expansion ora non-conforming use. See Article XX111. In both instances, special treatment is required for a n expansion in a use that is no longer permitted by right. In the case ora nonconforming use the Borough Ordinance sets specific requirements. In the case of a use permitted by special exception, the procedures for review by the Zoning Hearing Board apply. To allow the Appellant to expand its building without the requirement for special exception approval, as suggested by the Appellant, is inconsistent with the Borough Ordinance for the reason that it would treat Appellant's use of the property as a use permitted by right rather than a use permitted by special exception. The Borough Ordinance clearly delineates those uses, which are permitted by right, and those uses, which are permitted subject to special exception approval by the Zoning Hearing Board. To ignore the difference in treatment would circumvent the safeguards established in the special exception process. CarliMe Zoning Hearing Board Case No. 021-03, Page 2 Anyone aggrieved by this decision of the Board has the right to appeal to the Cumberland County Court of Common Pleas within 30 days fr~m_t, he day~ecision. Jefftey G. Bergstenv Carlisle Zoning Hearing Board Case No. 021-03, Page 3 CERTIFICATE OF SERVICE I the undersigned hereby certify that on this 19t~ day of September, 2003, a copy of the Notice of Appoeal was served by first-class, postage prepaid United States mail in Carlisle, Pennsylvania upon the following: Borough of Carlisle Attn: Kenneth Womack 53 West South Street Carlisle, PA 17013 Stephen D. Tiley, Esquire, Solicitor Zoning Hearing Board 5 South Hanover Street Carlisle, PA 17013 Russell Bova 709 Yorkshire Drive Carlisle, PA 17013 60/West Pomfret Street Attorney for the Appellant, Carlisle First Church of God Carlisle First Church Of God 705 Glendale Street Carlisle, Pa.17013 VS. Borough of Carlisle Zoning Hearing Board 53 West South Street Carlisle, Pa.17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03_4998 CIVIL TE~ WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) : SS. COUNTY OF CUMBERLAND) TO: We, being willing for certain reasons, to have certified a certain action between Carlisle First Church Of God vs Borough of Carlisle Zoning Hearing pending before you, do co~and you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges of our Court of Co~r~on Pleas at Carlisle, within20 days of the date hereof, together with this writ; so that we may further cause to be done that which ought to be done according to the laws and Constitution of this Co~r~onwealth. WITNESS, the Honorable our said Court, at Carlisle, Pa., the 19th day of September 2003 Prothonotary SHERIFF'S RETURN - CASE NO: 2003-04898 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERL~-ND BEVERLY HEALTH & REHABILTATION VS MENZIES NANCY C REGULAR SHANNON SHERTZER Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE MENZIES NANCY C DEFENDANT at 1026:00 HOURS, at WEST SHORE HEALTH & REHAB CAMP HILL, PA 17011 NANCY MENZIES a true and attested copy of COMPLAINT Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the on the 19th day of September, 2003 770 POPLAR CHURCH ROAD by handing to & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this 2 ~ day of 0 A.D. ~P~ot~onot ary ~ So Answers: R. Thomas Kline 09/23/2003 MARK EMERY By: 7Deput y Sheriff CARLISLE FIRST CHURCH OF GOD, Appellant BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-4998 CIVIL TERM CIVIL ACTION-LAW LAND USE APPEAL CARLISLE FIRST CHURCH OF GOD, Appellant BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-5267 CIVIL TERM CIVIL ACTION-LAW LAND USE APPEAL PETITION TO INTERVENE Petitioner is Robert L. O'Brien, Esquire, who makes application on behalf of Russell and Candace Bova pursuant to Pa.R.C.P. 2326: 1. Russell and Candace Bova am adjoining landowners to the Carlisle First Church of God. 2. The above-captioned appeal involves actions of the Borough Of Carlisle Zoning Hearing Board and are outlined in the appeals docketed to the above-captioned actions. 3. Mr. And Mrs. Bova am not a party to the above-captioned appeal and desire to intervene as parties for the following masons: a. Mr. Bova has appeared before the Borough of Carlisle requesting changes and modifications to the proposed plans presented by the Appellant before the Zoning Hearing Board. Mr. And Mrs. Bova will be adversely affected if this court overturns the action of the Zoning Hearing Board because of the negative impact on their residential home, the quality of life enjoyed by the Bova's in their home and a negative impact on property values. 4. If the Bovas were allowed to intervene, they would not file any specific pleading in connection with the Notice Of Zoning Appeal filed by Appellants. Mr. And Mrs. Bova's actions would be to file a brief in support of the decision of the Zoning Hearing Board with their legal counsel appearing at argument. They would also desire that counsel be involved in all matters related to the case that may take place pursuant to the applicable provisions of the Pennsylvania Municipalities Planning Code at 55 P.S. § 1101-a, et seq. WHEREFORE, Petitioner prays for leave for Mr. And Mrs. Bova to intervene in this action and request that the court issue a rule on the current parties to show cause why Mr. And Mrs. Bova should not be permitted to intervene. Respectfully submitted, O'BRIEN, BARIC & SCHERER Robert L~-O'~quire - I.D. #28351 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 rlo.dirlclientslbovalintervene.pet CERTIFICATE OF SERVICE I hereby certify that on November ?7 ,2003, I, Tina M. Ascani, Legal Secretary, of O'Brien, Baric & Scherer, did serve a copy of the Petition To Intervene, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: James Hughes, Esquire Salzmann, Hughes & Fishman 95 Alexander Spring Road Suite 3 Carlisle, Pennsylvania 17013 Stephen Tiley, Esquire Frey & Tiley 5 South Hanover Street Carlisle, Pennsylvania 17013 Tina M. Ascani, Legal Secretary CARLISLE FIRST CHURCH OF GOD, Appellant BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-4998 CIVIL TERM CIVIL ACTION-LAW LAND USE APPEAL CARLISLE FIRST CHURCH OF GOD, Appellant BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-5267 CIVIL TERM CIVIL ACTION-LAW LAND USE APPEAL ORDER OF COURT AND NOW, this Z/" day of ~ ,2003, upon consideration of the attached Petition To Intervene, a Rule is hereby issued upon Appellant, Carlisle First Church Of God and Appellee, Borough of Carlisle Zoning Hearing Board to show cause why the Mr. And Mrs. Bova should not be allowed to intervene in this action. This Rule is returnable twenty (20) days from the date of service of a copy of this Petition with the Appellant and Appellee. Those parties are directed to file an answer to the Petition To Intervene within said twenty (20) day time limit, if they oppose such intervention. BYTHE COURT, CARLISLE FIRST CHURCH OF GOD, Appellant BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-4998 CIVIL TERM CIVIL ACTION-LAW LAND USE APPEAL CARLISLE FIRST CHURCH OF GOD, Appellant BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-5267 CIVIL TERM CIVIL ACTION-LAW LAND USE APPEAL PETITION TO INTERVENF Petitioner is Robert L. O'Brien, Esquire, who makes application on behalf of Russell and Candace Bova pursuant to Pa.R.C.P. 2326: 1. Russell and Candace Bova are adjoining landowners to the Carlisle First Church of God. 2. The above-captioned appeal involves actions of the Borough Of Carlisle Zoning Hearing Board and are outlined in the appeals docketed to the above-captioned actions. 3. Mr. And Mrs. Bova are not a party to the above-captioned appeal and desire to intervene as parties for the following reasons: a. Mr. Bova has appeared before the Borough of Carlisle requesting changes and modifications to the proposed plans presented by the Appellant before the Zoning Hearing Board. Mr. And Mrs. Bova will be adversely affected if this court overturns the action of the Zoning Hearing Board because of the negative impact on their residential home, the quality of life enjoyed by the Bova's in their home and a negative impact on property values. 4. If the Bovas were allowed to intervene, they would not file any specific pleading in connection with the Notice Of Zoning Appeal filed by Appellants. Mr. And Mrs. Bova's actions would be to file a brief in support of the decision of the Zoning Hearing Board with their legal counsel appearing at argument. They would also desire that counsel be involved in all matters related to the case that may take place pursuant to the applicable provisions of the Pennsylvania Municipalities Planning Code at 55 P.S. § 1101-a, et seq. WHEREFORE, Petitioner prays for leave for Mr. And Mrs. Bova to intervene in this action and request that the court issue a rule on the current parties to show cause why Mr. And Mrs. Bova should not be permitted to intervene. Respectfully submitted, O'BRIEN, BARIC & SCHERER Robert L. O'l~rien, Esquire I.D. #28351 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 rlo,dirlclientslbovalintervene.pet CERTIFICATE OF SERVICE I hereby certify that on November /'7 ,2003, I, Tina M. Ascani, Legal Secretary, of O'Brien, Baric & Scherer, did serve a copy of the Petition To Intervene, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: James Hughes, Esquire Salzmann, Hughes & Fishman 95 Alexander Spring Road Suite 3 Carlisle, Pennsylvania 17013 Stephen Tiley, Esquire Frey & Tiley 5 South Hanover Street Carlisle, Pennsylvania 17013 Tina M. Ascani, Legal Secretary TO TN~ P~OT~ONOTARY OF CUMBERLAND COUNTY~ CAPTION OF CASE (entir~ ~t~ ~ust bm state~ in full) CARLISLE FIRST CHURC~ OF GOD IN THE ODURT OF (Ii~qON PLEAS OF ~ COU55~, P~NNSYLVANIA BOROUGH OF CARLISLE ZONING HEARING BOARD, NO. 2003-4998 CIVIL '.'~ CML ACTION - LAW LAND USE APPEAL 19 (c) i. State matter tO be -.~ed (i.e.. ~!~!ntiff's ,,~3_'~ fO= mine t~ul. ~mfe~snt,$ Appeal frcm determination of Zoning Hearing Board (a) for ~s: J~4ES D. HUGHEs, ESQUIRE 95 AT,R~ER SPRING ROAD, STE 3 CARLISLE, PA 17013 (b) ~ cl~af-~'~i~,,~nt: S'±'~PHEN TILEY, ESQUIRE N~-~ess= 5 SOUTH HANOVER STREw%' CARLISLE, PA 17013 17 West South Street for intervenor - Mr. and Mrs. Bova: Robert L. O'Brien, Esquire Carlisle, PA 17013 4. Az~a~mt Court Feb.~ ~ISk~4AN, P.C. //~k~,ey f~ ' car±~sle Flrst 'Lnurcn or ~od LAW OFFICES SNelBAKER. BRENNEMAN & SPARE CARLISLE FIRST CHURCH OF GOD, Appellant V. BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee AND RUSSEL BOVA and CANDACE BOVA, Intervenors : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2003-4998 CIVIL TERM : : CIVIL ACTION - LAW : LAND USE APPEAL PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of Stephen D. Tiley, Esquire as attorney for Appellee Borough of Carlisle Zoning Hearing Board in the above-captioned matter. Date: January 28, 2004 S~ephefi D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013 PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Keith O. Brenneman, Esquire of Snelbaker, Brenneman & Spare, P. C. as attorney for Appellee Borough of Carlisle Zoning Hearing Board in the above- captioned matter. Date: January 28, 2004 SNELBAKER, BRENNEMAN & SPARE, P. C. BY: Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Borough of Carlisle Zoning Hearing Board & SPARE CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Pmecipe to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013 Robert L. O'Brien, Esquire O'Brien, Baric & Scherer 17 W. South Street Carlisle, PA 17013 James D. Hughes, Esquire G. Bryan Salzmann, Esquire Salzmann, Hughes & Fishman, P. C. 95 Alexander Spring Road Carlisle, PA 17013 SNELBAKER, BRENNEMAN & SPARE, P.C. Date: January 28, 2004 Keith O. Brenneman, Esquire 44 W. Main Street P.O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Borough of Carlisle Zoning Hearing Board LAW OFFICES SNELBAK~R, BRENNEMAN & SPARE CARLISLE FIRST CHURCH OF GOD, Appellant V. BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee AND RUSSEL BOVA and CANDACE BOVA, Intervenors IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-4998 CIVIL TERM CIVIL ACTION - LAW LAND USE APPEAL MOT_____ION TO CO_N. TINUE ARGUMENT TO T_THE MAR_CH 24~2200{A_ RGUM~sE~SION Keith O. Brenneman, Esquire, solicitor for Appellee Borough of Carlisle Zoning Hearing Board, submits this Motion To Continue Argument and in support thereof states the following: 1. This matter was initiated through a Land Use Appeal filed September 19, 2003 by Appellant Carlisle First Church of God from a decision of the Borough of Carlisle Zoning Hearing Board (the "Board"). 2. On October 28, 2003 the Record of this appeal was filed with the Prothonotary. 3. On January 7, 2004 the Board appointed Keith O. Brenneman, Esquire as its solicitor. 4. On January 9, 2004 Appellant Carlisle First Church of God's counsel filed a pmecipe with the Prothonotary listing the Land Use Appeal for argument on February 4, 2004. 5. Appellant's office by letter dated January 12, 2004 served a copy of the praecipe listing this case for argument upon Stephen D. Tiley, Esquire. Attorney Tiley had previously entered his appearance in this case on behalf of the Board on October 28, 2003. 6. Attorney Tiley, Intervenors' attorney Robert L. O'Brien, Esquire and Appellant's attorney James D. Hughes agreed, after confirmation with the Court Administrator, that Appellant could file its brief on January 27, 2004 and that reply briefs would be submitted by 12:00 p.m. on February 3, 2004. 7. The Board desires Keith O. Brenneman to represent it in this Land Use Appeal. On January 28, 2004 Keith O. Brenneman entered his appearance for the Board in this case. 8. The Board's new solicitor does not have sufficient time to review the record, relevant issues and prepare and file a reply brief for the argument on February 4, 2004 as required by either C.C.R.P. 210-6 or the schedule agreed to as stated in Paragraph 6, above. 9. The Board's solicitor requests that argument on the appeal be continued to the March 24, 2004 argument court session. 10. Intervenors' attorney Robert L. O'Brien, Esquire consents to the continuance requested herein. 11. Appellant's attorney James D. Hughes, Esquire does not oppose the continuance requested herein. WHEREFORE, Keith O. Brenneman, Esquire on behalf of the Borough of Carlisle Zoning Hearing Board requests this Court to issue an Order continuing argument in this case to the March 24, 2004 argument court session. LAW OFfiCES Date: January 28, 2004 SNELBAKER, BRENNEMAN & SPARE, p. C. Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Borough of Carlisle Zoning Hearing Board -2- VERIFICATION I verify that the statements made in the foregoing Motion are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: January 28, 2004 Keith O. Brenneman LAW O[flCe$ SNELBAKEr, BrENNEMaN & SPare LAW OFFICES SNEIBAKER. BR~NNEMAN & SPARE C_ERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date caused a tree and correct copy of the foregoing Motion to be served upon the person and in the manner indicated below: F_IIRST CLASS MAIL, POSTAGE PREPAID~_~ ADDRESSED AS FOLLOWS_: Robert L. O'Brien, Esquire O'Brien, Baric & Scherer 17 W. South Street Carlisle, PA 17013 James D. Hughes, Esquire G. Bryan Salzmann, Esquire Salzmann, Hughes & Fishman, p. C. 95 Alexander Spring Road Carlisle, PA 17013 SNELBAKER, BRENNEMAN & SPARE, P.C. Date: January 28, 2004 By: Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Borough of Carlisle Zoning Hearing Board CARLISLE FIRST CHURCH OF GOD, Appellant V. BOROUGH OF CARLISLE ZONING HEARING BOARD, Appellee AND RUSSEL BOVA and CANDACE BOVA, Intervenors : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVAN : NO. 2003-4998 CIVIL TERM : : CIVIL ACTION - LAW LAND USE APPEAL O~RDER AND NOW, this ~" day of January, 2004, upon consideration of the Motion To Continue Argument of the Borough of Carlisle Zoning Hearing Board, it is hereby ORDERED that argument on the land use appeal is hereby continued from the February 4, 2004 session of argument court and that argument on the land use appeal take place at the March 24, 2004 session of argument court. SPAre BY THE COURT: 7- jr. ;;;: :01 NV 6~ NVI" ~IOOZ CARLISLE FIRST CHURCH OF GOD Appellant V. BOROUGH OF CARLISLE ZONiNG HEARING BOARD Appellee iN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Law Land Use Appeal No. 03-4998 CMl Term CARLISLE FIRST CHURCH OF GOD Appellant V. BOROUGH OF CARLISLE ZONING HEARING BOARD Appellee 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Law Land Use Appeal : No. 03-5267 Civil Term APPELLANT CARLISLE FIRST CHURCH OF GOD'S MOTION TO CONSOLIDATE AND NOW COMES APPELLANT, Carlisle First Church of God, by and through its a~tomeys, Salzmann, Hughes & Fishman, P.C., and files this Motion to Consolidate and in support thereof, avers as follows: 1. Counsel for Appellee, Borough of Carlisle Zoning Hearing Board does not oppose this Motion. 2. Counsel for Intervenors, Russell and Candace Bova, does not oppose this Motion. 3. The Appeal o£the Borough of Carlisle Zoning Hearing Board's ("Board") determination that a special exception is needed in order for the Borough to approve the Carlisle First Church of God's ("Church") submitted Final Land Development Plan for the Church's addition project is docketed at No. 03-4998. 4. The Appeal of the Board's approval of the special exception with certain conditions is docketed at No. 03-5267. 5. The appeals involve a common question of law or fact and arise from the same occurrence - the requirement of the special exception approval. 6. Appellant Church listed Docket No. 04-4998 for arg~'nent on February 4, 2004. 7. Said argument was continued until March 24, 2004 by Order of Court dated January 29, 2004. 8. Counsel for Appellant Church had intended to list the Appeal docketed at No. 03-5267 for argument depending on the outcome of the Appeal docketed at No. 03-4998. 9. Since the Appeal docketed at 03-4998 appeals the determination that a special exception application for the Church's addition was required, it is directly related to the second Appeal docketed at No. 03-5267 which appeals the approval of the special exception with certain conditions. 10. Consolidation of the two cases would enable counsel for all parties to address the second appeal at the same time the first appeal is argued. 11. Consolidation of the two cases would promote an efficient utilization of this Court's time and docket and avoid unnecessary cost and delay. 12. Consolidation of the two related appeals is authorized by Pa.R.C.P. No. 213(a). WHEREFORE, Appellant respectfully requests this Honorable Court to grant this Motion to Consolidate the two cases and allow both matters to be argued on March 24, 2004. Respectfully Submitted, Date: //~,/~ ~-,2004 Sal~shman, P.C. ~J~la~/l~.. Hughes, Esquire Attgrfiey ID# 58884 .,..G~. Bryan Salzmann, Esquire Attorney ID# 61935 95 Alexander Spring Road; Suite 3 Carlisle, PA 17013 (717) 249-6333 FAX: (717) 249-7334 CERTIFICATE OF SERVICE I hereby certify that on this ~ r~Tday of March, 2004, I served a true and correct copy of the Motion to Consolidate via first class mail, postage prepaid, to the following: Keith O. Brenneman, Esquire P.O. Box 318 44 West Main Street Mechanicsburg, PA 17055 Robert L. O'Brien, Esquire 17 West South Street Carlisle, PA 17013 Attog~fey I]2) # 58884 Costisel for Appellant 9~Alexander Spring Road; Suite 3 ~Carlisle, PA 17013 (717) 249-6333 Fax: (717) 249-7334 CARLISLE FIRST CHURCH OF GOD Appellant V. BOROUGH OF CARLISLE ZONiNG HEARING BOARD Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : Civil Action - Law Land Use Appeal No. 03-4998 Civil Term CARLISLE FIRST CHURCH OF GOD Appellant V. BOROUGH OF CARLISLE ZONiNG HEAR1NG BOARD Appellee iN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : Civil Action - Law : : Land Use Appeal : : No. 03-5267 Civil Term consolidated .... consolidated case. AND NOW, this the attached Motion to Consolidate, Case Nos. 2003-4998 and 2003-5267 are hereby · Argument on March 24, 2004 shall be for the ORDER OF COURT day of ,ra,~. ~; ., 2004, upon consideration of BY THE COURT, CARLISLE FIRST CHURCH OF GOD, V. BOROUGH OF CARLISLE ZONING HEARING BOARD V. RUSSELL BOVA and CANDACE BOVA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-4998 CIVIL LAND USE APPEAL CARLISLE FIRST CHURCH OF GOD, V. BOROUGH OF CARLISLE ZONING HEARING BOARD V. RUSSELL BOVA and CANDACE BOVA IN THE COURT OF COMMON PLEAS OF CUMBERLAND C;OUNTY, PENNSYLVANIA NO. 2003-5267 CP¥IL IN RE: LAND USE APPEAL BEFORE HESS, GUIDO, JJ~ AND NOW, this ~~ ORDER OF COURT day of APRIL, 2004, the action of thc Zoning Hearing Board in requiring Appellant to file a special exception application in connection with the expansion of its facilities is AFFIRMED and the appeal filed at No. 2003-4998 (Civil) is DENIED. It is further ordered and directed that the matter filed at No. 2003-5267 is remanded to the Zoning Hearing Board to take additional e. vidence relating to the following three issues: 1.) Can the proposed expansion be built in compliance with the conditions imposed by the ZHB? 2.) What is the basis for a 50' set back verses a 30' set back? 3.) Is the "pending ordinance doctrine" applicable? James D. Hughes, Esquire Keith O. Brenneman, Esquire Robert L. O'Brien, Esquire :sld Edward E. Guido, J. CARLISLE FIRST CHURCH OF GOD, V. BOROUGH OF CARLISLE ZONiNG HEARING BOARD V. RUSSELL BOVA and CANDACE BOVA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-4998 CIVIL LAND USE APPEA~L CARLISLE FIRST CHURCH OF GOD, V. BOROUGH OF CARLISLE ZONING HEARING BOARD V. RUSSELL BOVA and CANDACE BOVA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-5267 CIVIL IN RE: LAND USE APPEAl, BEFORE HESS, GUIDO, JJ. OPINION AND ORDER OF COURT Currently before us are the consolidated appeals of the Carlisle First Church of God (hereinafter "Appellant") from two separate decisions of the Carlisle Zoning Hearing Board (hereinafter "ZHB"). The first appeal (No. 2003-4998) challenges the decision of thc ZHB which required Appellant to file a speci~d exception application in order to expand its current facility. The subsequent appeal (No. 2003-5267) asks us to NO. 2003-4998 CIVIL 2003-5267 CiVIL vacate the conditions imposed by the ZHB in connection with its grant of Appellant's special exception application. Both appeals were consolidated by order of the Honorable Kevin A. Hess dated March 9, 2004. The parties have briefed and argued their respective positions. FACTUAL BACKGROUND Appellant is a place of worship located on a five acre parcel in the Borough of Carlisle. The neighborhood in which it is located is an R-1 Low Density Residential District. At the time the church was constructed in 1973, a place of worship was a use permitted by right in the Borough's R-1 Low Density Residential District. Sometime thereafter the Borough changed its zoning ordinance. Under the amended ordinance, a place of worship is no longer a use permitted by right. It is now only permitted as a special exception use. On May 8, 2003, Appellant filed a Preliminary Final/Land Development Plan in connection with the proposed expansion of its facilities.~ Appellant applied to the zoning officer for approval of its plan as well as a building permit to construct the proposed addition. Since no special exception had ever been issued, and since the officer felt that certain aspects of Appellants' plan could warrant the imposition of conditions, he determined that an application for special exception would have to be filed with the ZHB. Appellant asked the ZHB to review the zoning officer's determination regarding its need to file a special exception application. The ZHB held a public heating on the matter on July 9, 2003. After the hearing, it upheld the zoning officer's determination. Consequently, Appellant filed the timely appeal docketed in this Court at No. 4998 of Appellant plans to increase the size of its existing building from 11,965 square feet to 22,732 square feet. 2 NO. 2003-4998 CIVIL 2003-5267 CIVIL 2003. The only issue to be addressed on that appeal is whether Appellant was required to file an application for a special exception use. On July 17, 2003, Appellant filed an application for special exception as the ZHB had determined it should. A public hearing was held before the ZHB on August 7, 2003. Several residential neighbors appeared to request that the ZItB impose certain conditions in connection with the grant of the special exception use. After the heating, the ZHB granted Appellant's special exception use subject to various conditions. Appellant has challenged the imposition of those conditions in the timely appeal filed at No. 5267 of 2003. Standard of Review. In reviewing a denial of a special exception we are "limited to determining whether the Supervisors abused their discretion of an error of law has been committed." Marshall Township Board of Supervisors v. Marshall Town'.rhip Zoning Hearing Board, 717 A.2d 1, 3 (Pa. Commwlth 1998) citing VisionQuest National Ltd, v. Board of Supervisors of Honey Brook Township, 524 Pa. 107, 569 A.2d 915 (1990).2 The board abuses its discretion when it makes findings not supported by substantial evidence, which is such evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). "(A) court may not substitute its judgment for that of the board; and assuming 2 Some of the cases cited in this opinion involve a conditional use rather than a special exception. However, we note that "a conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal legislative body." Bailey v. Upper Southampton Twp., 690 A.2d 1324, 1326 (Pa. Commwlth 1997) See also Sheetz v. Phoenixville Borough Council, 804 A.2d 113 (Pa. Commwlth. 2002): "The law regarding conditional uses and special exceptions is vfltually identical." 804 A.2d at 115 (F.N.5). NO. 2003-4998 CWIL 2003-5267 CIVIL the record demonstrates substantial evidence, the Court is bound by the board's findings which result from resolutions of credibility and the verifying of evidence rather than a capricious disregard for the evidence." Z°ningHearing~?oardofSodsbury Township v. Board of Supervisors of Sodsbury Township, 804 .2d lz. 74, 1278 (Pa. Commonwealth A '~ 20O2). DISCUSSI__ON_ There are two issues for us to decide. The first is whether the Z/lB made an error of law in holding that Appellant is required to file an application for a special exception in order to expand its building. The second is whether the ZHB abused its discretion or made an error of law in imposing the conditions in connection with/ts grant of the special exception. Was Appellant Required to File a Special Exception Application? Appellant's use of its premises as a place of worship was a use permitted by right under the ordinance in effect at the time its original facility was constructed. Subsequent amendments to the ordinance changed the use fi'om one that is permitted by right to one that is permitted by special exception. Whether Appellant needs to file an application for a special exception under these facts appears to be a question of first impression. For the reasons hereinafter set forth, we hold that it does. The Commonwealth Court's decision in Pennridge Development Enterprises, Inc. v. I~olovnik, 154 Pa. Commwlth 609, 624 A.2d 674 (1993) provides gu/dance. In that case an airport which had been constructed in 1966 became a nnn-conforming use following the passage ora zoning ordinance in 1970. The zoning ordinance was later 4 NO. 2003-4998 CiVIL 2003-5267 CiVIL amended in 1987 such that a portion of the airport fell irtto a zone where it was classified as a conditional use. Thereafter, the landowners proposed to build hangers on the portion that had been rezoned to permit airports as a conditional use. The supervisors "denied Pennridge's plan on the ground that it failed to file a conditional use application as required by the 1987 zoning ordinance." 624 A.2d at 675. The trial court reversed the action of the supervisors, holding that "the property at issue in the plan remained a non- conforming use regardless of the fact that it was rezoned in 1987 to permit airports as a conditional use." 624 A.2d at 675. The Commonwealth Court reversed the thal court. Generally, a use is nonconforming when, among other things, it does not comply with present zoning regulations· ·.. Here, while Peunridge's airport did not comply with the Township's 1970 zoning ordinance, the portion of Pennridge's airport at issue in the plan is now in compliance with the present zoning provisions of the Township. In our view, it would be illogical to conclude that Permridge retains a nonconforming use: to operate an airport, when Pennridge is permitted to operate an airport on its land under the Township's 1987 zoning ordinance. Hence, we eonelude that Pennridge's nonconforming rise was converted by the Township's 1987 zoning ordinance into a permitted t~se .... Therefore, we hold that the trial court erred in determining that Pennridge retained a nonconforming use to operate an airport on the land at issue. Pennridge, 624 A.2d at 676 (emphasis added, citations and footnotes omitted.) As a result the landowner was required to file a conditional use application. The only distinction between Pennridge and the case at bar is that Appellant's pre-amendment use was permitted by right rather than non-conforming. We view that as a distinction without a difference. Furthermore, as the ZHB noted: 5 NO. 2003-4998 CWIL2003-5267 CIVIL Section 255-177.A. clearly states that the purpose of the special exception process is "to allow a carefi~l review of uses that have some potential of conflicts with adjacent uses or areas."... Because of changes in the Zoning Ordinance over time, the Appellant's use, which is now permitted as a special exception, has never been reviewed by the Zoning Hearing Board. Therefore, any change in the Appellant's use of the property, whether that be to a different use or an expansion of the use through an expansion of the existing building requires special exception review by the Zoning Heating Board pursuant to Section 255-177. To allow the Appellant to expand its building; without the requirement for special exception approval, as suggested by the Appellant, is inconsistent with the Borough Ordinance for the reason that it would treat Appellant's use of the property as a use permitted by tight rather them a use permitted by special exception. The Borough Ordinance clearly delineates those uses, which are permitted by tight, and those uses, which are permitted subject to special exception approval by the Zoning Heating Board. To ignore the difference in treatment would cimranvent the safeguards established in the special exception process? We agree with the reasoning of the ZHB and hold that it did not make an error of law when it determined that Appellant was required to submit a special exception application in connection with its request to expand its existing facilities.4 Did the ZHB err in the imposition of conditions? There are insufficient facts in the record for us to determine whether the ZHB abused its discretion or committed an error of law in the imposition of conditions. We question whether the imposition of the 50' set back amounted[ to a de facto denial of the ~ See ZHB decision dated July 9, 2003, p. 2. 4 If possible an ordinance must be construed to give effect to all of its provisions. Appeal of Neshaming Auto ~/illa, Ltd., 25 Pa. Commw. 129, 358 A.2d 433 (1976); 1 Pa. C.S.A. § 1921(a). Construing the statute to require special exception approval for an expansion of the church building is the only possible construction in accord with this principle of law. To hold otherwise would require us to completely ignore not only § 255-177(A) but also § 255-177(D) of the ordinance which dictates the standards each special exception use must meet in order to safeguard the character of the zoning district. 6 NO. 2003-4998 CIVIL 2003-5267 CiVIL proposed expansion. Appellant's council president testified that the project could not move forward if it had to be scaled back. The record is unclear as to whether the proposed addition can be built if Appellant is required to comply with the 50' set back requirement as opposed to the 30' to 35' set backs proposed by it. Further, we would like clarification of the facts found by the ZHB that led to the imposition of the 50' set back requirement. Finally, it appears that the ZHB may have committed an error of law. The briefs filed on behalf of the intervener and ZHB argue that the provisions of the zoning ordinance adopted on June 12, 2003, should have been applied under the "pending ordinance doctrine".5 See Department of General Services v. Board of Supervisors of Cumberland Township, 795 A.2d 440 (Pa. Commwlth. 2002). In its reply brief, Appellant argues that the doctrine does not apply.6 All parties refer to facts that are not in the record. In order for us to properly address the above issues, it is necessary to remand this matter so that the record may be supplemented. Consequently, we will enter the following order. rile the new ordinance reqmres a 50' set back, it appears that the ZHB applied the prior ordinance which would have required a setback of only 10 feet. 6 Appellant also argues that the issue was waived since the ZHB's decision to apply the prior ordinance was not appealed. However, we agree with intervenor that he had no reason to ;appeal since the ZHB granted his request to impose a 50' set back. NO. 2003-4998 CIVIL 2003-5267 CIVIL ORDER OF COURT AND NOW, this ~ 0'T'J'l day of APRIL, 2004, the action of the Zoning Hearing Board in requiring Appellant to file a special exception application in connection with the expansion of its facilities is AFFIRMED and the appeal filed al No. 2003-4998 (Civil) is DENIED. It is further ordered and directed that the matter filed at No. 2003-5267 is remanded to the Zoning Hearing Board to take additional evidence relating to the following three issues: 1 .) Can the proposed expansion be built in compliance with the conditions imposed by the ZHB? 2.) What is the basis for a 50' set back verses a 30' set back? 3.) Is the "pending ordinance doctrine" applicable? l:ly the Court, James D. Hughes, Esquire Keith O. Brenneman, Esquire Robert L. O'Brien, Esquire :sld /s/Edward E. Guido Edward E. Guido, J. 8 CARLISLE FIRST CHURCH OF GOD Appellant V. BOROUGH OF CARLISLE ZONING HEARING BOARD Appellee : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : Civil Action - Law : : Land Use Appeal : No. 2003-4998 Civil Term AMENDE~DD CERTIFICATE OF SER~VICE I hereby certify that on the 28th day of May, 2004, I served a true and correct copy of the Notice of Appeal via first class mail, postage pre-paid to the following: Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, Pennsylvania 17055; Robert L. O'Brien, Esquire 19 West South Street Carlisle, Pennsylvania 17013 I hereby certify that on the 1 lth day of June, 2004, I served a true and correct copy of the Notice of Appeal via hand delivery to the following: Court of Common Pleas of Cumberland County, Pennsylvania The Honorable Kevin A. Hess 1 Courthouse Square Carlisle, Pennsylvania 17013 Court of Common Pleas of Cumberland County, Pennsylvania The Honorable Edward E. Guido I Courthouse Square Carlisle, Pennsylvania 17013 Date: June 1 I, 2004 ~°~3~Y ! .D N.°' 61935 J~nflffs D. Hughes, Esquire ~.o~e.y.l~D_ No. 58884 ./'~,L,ZMA .NN'_HUGHES,. & FISHMAN, P.C. 95 Alexander Sprfng Road, Ste 3 Carlisle, Pennsylvania 17013 (717) 249-6333 Counsel for Appellant First Church of God CARLISLE FIRST CHURCH OF GOD: Appellant VS. BOROUGH OF CARLISLE ZONiNG HEARING BOARD Appellee iN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LAND USE APPEAL NO. 03-4998 CIVIL iN RE: APPEAL OF PLAiNTIFF ORDER AND NOW, June 15, 2004, in accordance with Rule 1925 of the Rules of Appellate Procedure, the Plaintiff having filed a notice of appeal, the appellant is directed to file of record, within fourteen (14) days hereof, and serve upon the undersigned a concise statement of the matters complained of on the appeal. BY THE COURT, Edward E. Guido, J. G. Bryan Salzmann, Esquire James D. Hughes, Esquire For the Appellant Keith O. Brenneman, Esquire Robert L. O'Brien, Esquire For the Appellee :rim IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CARLISLE FIRST CHURCH OF GOD, APPELLANT BOROUGH OF CARLISLE ZONING HEARING BOARD, APPELLEE AND RUSSELL BOVA AND CANDACE BOVA, APPELLEE CMWLTH CT DOCKET NO. 1110 CD 2004 COMMON PLEAS DOCKET NO. 2003-4998 CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAl, PURSUANT TO RULE 1925(b) CARLISLE FIRST CHURCH OF GOD, Appellant, by and through its attorneys, Salzmann, Hughes and Fishman, P.C., files this Concise Statement of Matters Complained of on Appeal and asserts the following: STATEMENT OF ISSUE DOES THE BOROUGH OF CARLISLE ZONING ORDINANCE REQUIRE APPELLANT TO FILE A SPECIAL EXCEPTION APPLICATION FOR THE EXPANSION OF A USE PERMITTED BY SPECIAL EXCEPTION WHEN THE PROPOSED STRUCTURAL EXPANSION WILL NOT CHANGE THE USE OF THE PROPERTY WHICH WAS A PERMITTED USE WHEN IT WAS ORIGINALLY CONSTRUCTED AND WHEN THE PROPOSED EXPANSION MEETS ALL SPECIAL EXCEPTION USE AND DIMENSIONAL REQUIREMENTS SET FORTH IN THE ZONING ORDINANCE AND WHEN THE PROPOSED EXPANSION W1LL NOT CAUSE POTENTIAL CONFLICTS WITH ADJACENT USES? 1. Appellant, Carlisle First Church of God, (hereinafter "First Church") is a Pennsylvania not-for-profit church with its place of worship located at 705 Glendale Street, Carlisle, Cumberland County, Pennsylvania. The real property at this location is owned by First Church. 2. Appellees are the Zoning Hearing Board of the Borough of Carlisle, Cumberland County, Pennsylvania, with offices at 53 West South Street, Carlisle, Pennsylvania, and Russell and Candace Bova, adjoining landowners to First Church's property. 3. At the time that First Church originally constructed its existing place of worship, churches were a permitted use in the R-1 Low Density Residential District. Due to a subsequent change in the zoning ordinance, the property is now permitted as a special exception in the R-1 Low Density Residential District. 4. On or about May 8, 2003, First Church filed with the Borough of Carlisle and its Planning and Zoning Codes Manager a Preliminary/Final [,and Development Plan for the purpose of constructing an addition to its existing building and parking area. 5. On or about May 12, 2003, the Carlisle Planning and Zoning Codes Manager determined that a special exception application was necessary in order for the Borough to approve the submitted Final Land Development Plan for First Church's expansion project. 6. First Church appealed the Zoning Manager's decision to the Zoning Hearing Board at the public hearing on July 9, 2003. The Zoning Hearing Board upheld the Zoning Manager's determination that a special exception application was required by a unanimous decision. 7. On September 19, 2003, First Church filed its timely Notice of Appeal in the Court of Common Pleas of Cumberland County with regard to the Zoning Hearing Board's decision to require First Church to file a special exception application. 8. Following oral argument, on April 30, 2004 the Honorable Edward E. Guido affirmed the action of the Zoning Hearing Board requiring First Church to file a special exception application. 9. In its Opinion and Order of Court, the Trial Court relied upon Pennridge Development Enterprises, Inc. v. Volovnik, 154 Pa. Cmwlth. 609, 624 A.2d 674 (1993), in determining that the Zoning Hearing Board did not err in requiring First Church to file a special exception application. 10. First Church respectfully disagrees with the Trial Court's reliance on Pennridge and asserts that it is distinguishable from the case herein. 11. Pennridge, involved a nonconforming use that was subsequently re-zoned as a conditional use. The Commonwealth Court in Pennridge held that: [I]t would be illogical to conclude that Pennridge retains a nonconforming use to operate an airport, when Pennridge is permitted to operate an airport on its land under the Township's 1987 zoning ordinance. Hence, we conclude that Pennridge's nonconforming use was converted by the Township's 1987 zoning ordinance into a permitted use. Pennridge, 624 A.2d at 613. 12.. In the present case, First Church was a permitted use that was subsequently re- zoned to a use permitted by special exception. 13. The critical distinction between the present case and Pennridge is the manner in which the properties were zoned prior to the amendments to their respective zoning ordinances. 14. In Pennridge, the pre-amendment use was a non-conforming use which was re- zoned to a use permitted as a conditional use. As the Court stated, it is not logical to continue to classify Pennridge's use as nonconforming when it is now permitted. 15. On the other hand, in the present case, First Church was a permitted use that was re-zoned to a use permitted by special exception. 16. First Church's use was re-zoned from a permitted use to a different form of a permitted use, never as a nonconforming use. Therefore, the rationale used by the Court in Pennridge is not persuasive and is not applicable in the present case. 17. Additionally, under Section 255-213B(3) of the Carlisle Borough Zoning Code, the expansion of a nonconforming use shall only occur as a special exception approved by the Zoning Hearing Board. There is no provision regarding the expansion ora use already permitted by special exception. 18. Furthermore, the Pennsylvania Municipalities Planning Code provides that when there is doubt regarding the intended meaning of the language, it shall be interpreted in favor of the property owner. WHEREFORE, Appellant is respectfully requesting the Commonwealth Court to reverse the order of the Court of Common Pleas of Cumberland County and hold that First Church is not required to file a special exception application in connection with its expansion project. Respectfully Submitted, GItES & FISltMAN, P.C. No. 58884 , Esq. No. 61935 ~)5 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Fax: (717) 249-7334 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this ~ ~'t~day of ~-"~"~'~-_ , 2004, a copy of Appellant Carlisle First Church of God's Concise Statement of Matters Complained of on Appeal Pursuant to Rule 1925(b) was served by first-class, postage prepaid United States mail in Carlisle, Pennsylvania upon the following: Honorable Edward E. Guido Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 Borough of Carlisle Attn: Kenneth Womack 53 West South Street Carlisle, PA 17013 Keith O. Brenneman, Esquire Snelbaker, Brenneman & Spare 44 West Main Street Mechanicsburg, PA 17055 Robert L. O'Brien, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 Date iES & FISHMAN, P.C. .58884 sq. · 61935 ~,.~/95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Fax: (717) 249-7334 CARLISLE FIRST CHURCH OF GOD V. BOROUGH OF CARLISLE ZONING HEARING BOARD V. RUSSELL BOVA and CANDACE BOVA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2003-4998 CIVIL ~/ : CIVIL ACTION - LAW CARLISLE FIRST CHURCH OF GOD V. BOROUGH OF CARLISLE ZONING HEARING BOARD V. RUSSELL BOVA and CANDACE BOVA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2003-5267 CIVIL : CIVIL ACTION - I_AW IN RE: OPINION PURSUANTTO Pa. R.A.P. 1925 Guido, ]., .luly ~ ,2004 By order dated April 30, 2004 we affirmed the action of the Carlisle Zoning Hearing Board which required Carlisle First Church of God to file a special exception application in connection with the proposed expansion of its facilities· The church has filed the instant appeal· The reasons for our order of April 30, 2004 are set forth in the _~ opinion filed fully concurrently t DATE Edward E. Guido, ]. James D. Hughes, Esquire For the Appellant Stephen D. Tiley, Esquire Kenneth Womack 53 West South Street Carlisle, Pa. :17013 Russell Bova 709 Yorkshire Drive Carlisle, Pa. 17013 :sld Commonwealth Court of Pennsylvania June 14, 2004 RE: Carlisle First Church of God v. Bot. of Carlisle Agency Docket Number: Filed Date: May 28, 2004 Notice of Docketing Appealr A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Keith Orr Brenneman, Esq. James Douglas Hughes, Esq. Robert L. O'Brien, Esq. George Bryan SaJzmann, Esq. Party Name Borough of Carlisle Zoning I~learing Carlisle First Church of God Borough of Carlisle Zoning Hearing Carlisle First Church of God Party Type Appellee Appellant Appellee Appellant .1:45 P.~. Commonwealth Docket Sheet Docket Number: Page 1 of 3 June 14, 2004 1110 CD 2004 Commonwealth Court of Pennsylvania Carlisle First Church of God, Appellant Borough of Carlisle Zoning Hearing Board Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: Journal Number; Case Category: Civil Consolidated Docket Nos.: May 28, 2004 Awaiting Original Record CaseType: Zoning/Land Use Related Docket Nos.: Appellant Pro Se: IFP Status: Attorney: Bar No.: Address: Appellant Pro Se: IFP Status: Attorney: Bar No.: Address: Appellee Carlisle First Church of God Hughes, James Douglas 58884 93 Alexander Spring Rd #3 Carlisle, PA 17013 Phone No.: (717)249-2353 Receive Mail: Yes Carlisle First Church of God Salzmann, George Bryan 61935 Suite 3, 95 Alexander Spring Road Carlisle, PA 17013 Phone No.: (717)249-6333 COUNSEL INFORMATION Appoint Counsel Status: Law Firm: Irwin, McKnight & Hughes Fax No.: (717)249-6354 Appoint Counsel Status: Law Firm: Salzmann, Hughes & Fishman, p. C. Fax No.: (717)249-7334 Receive Mail: Yes Borough of Carlisle Zoning Hearing Board 6/14/2004 5001 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carlisle First Church of God, Appellant v. No. 1110 C.D. 2004 Borough of Carlisle Zoning Hearing Board ORDER AND NOW, this 20th day of July, 2004, after telephone conference th/s date on the finality and appealability of the trial court order of April 30, 2004, and after concluding that the consolidation order of March 9, 2004 consolidated the matters without limitation, it is hereby ORDERED and DECREED as follows: The trial court order of April 30, 2004 is determined to be non-final and unappealable .at this time. Pursuant to Pa. R.A.iP. 311 (f), the appeal is hereby QUASHED. ROBERT SIMP: Oett~ed from the JUL 2 ! 2004 and Order