HomeMy WebLinkAbout08-4797CaptionC:\Documents and SettinBs\crb\DesktopUCeiser Notice for Appeal
Created: 9/20/04 0:06PM
Revised: 8/8/08 10:39AM
Hubert X. Gilroy, Esquire
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
I.D. 29943
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Appellants
MICHAEL T. KEISER and IN THE COURT OF COMMON PLEAS OF
KATHY H. KEISER CUMBERLAND COUNTY, PENNSYLVANIA
Appellants
V. NO. 2008- g 7 9 7
CIVIL ACTION - LAW
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD
Appellees LAND USE APPEAL
aosl 5priA.6 Rot
Cu,111,51C i N 1701-3 NOTICE OF LAND USE APPEAL
Michael T. Keiser and Kathy H. Keiser, by their attorneys, Martson Deardorff Williams Otto
Gilroy & Faller, set forth the following:
Appellants, Michael T. Keiser and Kathy H. Keiser, are adult individuals and Appellants in
the above captioned Land Use Appeal with a mailing address of 2220 Circle Road, Carlisle,
Pa. 17013 (the "Subject Property").
2. Appellee, North Middleton Township Zoning Hearing Board (Board) is a Zoning Hearing
Board organized pursuant to appropriate provisions of the Pennsylvania Municipalities
Planning Code.'
3. This action is an Appeal of a Land Use Decision by the Board involving the Subject Property
which is located in Cumberland County and this Appeal is filed pursuant to 53 P.S. Section
11001-A et seq.
1 53 P.S. Section 10101 et seq.
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4. Appellants filed a Variance Application (Application) with the Board seeking a setback
variance for a shed located at the Subject Property.
5. A hearing was held on the Application on July 8, 2008.
6. In a Decision issued by the Board dated July 8, 2008 and mailed on July 21, 2008 (Decision),
the Board denied the Appellants variance request. A copy of the Decision is attached hereto
and marked Exhibit `A'
7. The Decision of the Board included errors of law, represented an abuse of discretion, was
arbitrary in determining Findings of Facts and Conclusions of Law and had no basis in its
determinations of Findings of Facts and Conclusions of Law for the following reasons:
a. The requested relief was a di minimis variance request and the Board abused it
discretion in failing to grant the requested relief.
b. The Finding of Fact number 24 is not supported by competent testimony.
C. The fact that the shed has existed in its present location for a number of years without
significant problems merits a determination that the variance be granted.
d. The fact that testimony was presented indicating that numerous other sheds within
the Township of North Middleton are placed in a similar or even closer situation to
the boundary lines without anyproblems suggests that the Board abused its discretion
in refusing to grant the variance.
e. The Board erred in determining that the Applicants did not meet their burden to
demonstrate entitlement to a variance.
f. The determinations made by the Board in its Decision were not supported by
substantial evidence on the record.
WHEREFORE, Appellants request that this Honorable Court do the following:
A. Overturn the Decision of the Board and grant the variance.
B. Grant such other relief as the Court deems appropriate.
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DATE: August 8, 2008 _V/1 (V ?
Hubert X. Gilroy, Esqui e
MARTSON DEARD FF WILLIAMS OTTO
GILROY & FALLE
MARTSON LAW O FICES
I.D. 29943
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Appellants
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NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD
APPLICANTS' NAMES:
APPLICANTS' ADDRESS:
OWNERS' NAMES:
OWNERS' ADDRESS:
PROPERTY LOCATION:
CASE NO:
DATE OF APPLICATION:
DATE OF HEARING:
DATE OF DECISION:
BOARD MEMBERS PRESENT:
SOLICITOR:
Michael T. Keiser and Kathy H. Keiser
2220 Circle Road,
Carlisle, Pennsylvania 17013
Michael T. Keiser and Kathy H. Keiser
2220 Circle Road,
Carlisle, Pennsylvania 17013
2220 Circle Road,
Carlisle, Pennsylvania 17013
08-05
June 17, 2008
July 8, 2008
July 8, 2008
Henry M. Weeks, Chairman; James E. Hare;
James R. Bennett
Michael R. Rundle, Esquire
FINDINGS OF FACT
1. The Applicants are Michael T. Keiser and Kathy H. Keiser, his wife, who reside at
and own property located at 2220 Circle Road, Carlisle, Pennsylvania.
2. The Applicants purchased said property in June, 1988.
3. Said property is located in the Suburban Residential (R-1) Zoning District.
4. Said property is also known as Lot 60 in the Subdivision Plan of Section C of "Creek
View Heights," as recorded in the Office of the Recorder of Deeds in and for
Cumberland County, Pennsylvania in Plan Book 25, Page 49.
5. Said lot has frontage on Circle Road of 175.92 feet, frontage on Cumberland Drive
of 133.70 feet, and a rear property line of 103.14 feet.
6. Said property is a corner lot located in the northeast quadrant of the intersection of
Cumberland Drive and Circle Road. EXHIBIT
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7. When the Applicants purchased said property it was improved with a residential
dwelling facing Circle Road and a block and wooden shed approximately eight feet
wide, twelve feet long, and six feet high.
8. The rear wall of said shed was located in close proximity to the rear property line.
9. In 1993 the Applicants constructed an addition to their home and erected a six foot
high privacy fence along a portion of the northern and eastern (rear) property lines.
10. In the fall of 2004 the Applicants desired to replace the existing shed with a newer
and larger shed.
11. Applicant Michael Keiser contacted Ryan Hovis, who was then the Assistant Codes
Enforcement Officer for North Middletown Township to discuss the construction of
the new shed.
12. Mr. Hovis advised the Applicant that a building permit was not required for
construction of an accessory structure such as a shed with an area of 1,000 square
feet or less and that the shed could not be located within the front yard of the
property.
13. In the fall of 2004 the Applicants dismantled the existing shed.
14. In the spring of 2005 the Applicants began construction of their new shed.
15. The new shed is located within two feet of the rear property line.
16. The North Middleton Township Zoning Ordinance of 1997 provides that accessory
structures be set back a minimum of ten feet from the rear property line. 1
17. In March, 2008 the North Middleton Township Codes Department received a
complaint from Denise Wells, an owner and occupant of property adjoining the
Applicants' property on the east, concerning the location of the Applicants' shed.
18. Following receipt of an enforcement notice from the North Middleton Township
Codes Department, the Applicants filed an application for a variance to
Section 204-16.F(2)(c) of the North Middleton Township Zoning Ordinance relative
to the rear yard setback requirement.
19. Numerous sheds are located in the general vicinity of the Applicants' property within
the rear and side yard setback areas as provided by the North Middleton Township
Zoning Ordinance of 1997.
See North Middleton Township Zoning Ordinance Section 204-16.F(2)(c).
20. The Applicants are aware of only one such shed being erected after the enactment of
the current zoning ordinance, that shed being located at 2 Mountain View Drive.
21. The Applicants' property slopes from front to back dropping approximately 12 feet
within a distance of approximately 133 feet.
22. In May, 2007 sand from the Applicants' property washed onto the Wells' property
during a heavy rainstorm.
23. Applicant Michael Keiser removed said sand and apologized to Mr. Wells.
24. The existence of the Applicants' shed in its present location is a contributing factor
to increased water flow onto the Wells' property.
25. Sufficient room exists for the Applicants to locate their shed in the rear yard of the
property without violating the setback requirements of the zoning ordinance.
26. The Applicants' shed does not have a permanent foundation.
27. The Applicants utilized concrete blocks salvaged from the original shed as a
foundation for the new shed.
28. The Applicants did not apply for a zoning permit pursuant to Section 204-131 of the
North Middleton Township Zoning Ordinance prior to construction of the new shed.
DISCUSSION
The Applicants have requested a variance to Section 204-16.F(2)(c) of the North
Middleton Township Zoning Ordinance to permit the location of a shed within two feet of
the rear property line of their property. The ordinance requires that such structures be set
back a minimum of 10 feet from the rear property line.
The criteria for the granting of a variance is set forth in Section 18.06 of the North
Middleton Township Zoning Ordinance and Section 910.2 (53 P.S. Section 10910.2) of the
Municipalities Planning Code and has been summarized by the Pennsylvania Supreme Court
in Larsen v. Zoning Board of Adjustment of the City of Pittsbur h, 672 A.2d 286, 289 (Pa.
1996) as follows:
That an unnecessary hardship exists which is not created by the party seeking
the variance and which is caused by unique physical circumstances of the
property for which the variance is sought;
2. That a variance is needed to enable the party's reasonable use of the property;
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3. That a variance will not alter the essential character of the district or
neighborhood or substantially or permanently impair the use or development
of the adjacent property such that it is detrimental to the public welfare; and
4. That the variance will afford the least intrusive solution.
The Applicants contend first that the topography of their lot constitutes a unique
physical circumstance creating an unnecessary hardship requiring a variance. While it is true
that the Applicants' lot slopes from front to rear with a drop of approximately 12 feet over a
133 foot depth, the Applicants have failed to demonstrate that the topography would prevent
the construction of a shed in the rear yard of the property without violating the setback
requirement. The reason the shed was constructed in its present location was to maximize
the area of the rear yard for family activities. The mere desire of a property owner to provide
more room for family members' enjoyment fails to constitute the type of unnecessary
hardship required by law for the grant of a variance. Larsen v. Zoning Board of Adjustment
of the City of Pittsbu h, supra.
The Applicants argue further that the fact that their property is a corner lot reduces
the size of their rear yard thereby restricting the location of the shed. Under the zoning
ordinance comer lots are subject to a front yard setback along each street that the lot abuts.
As is shown on Applicants' Exhibit A-2, their lot is subject to a 35 foot building setback
along Circle Road and along Cumberland Drive. Accessory structures such as sheds may not
be located within the front yard in the Suburban Residential (R-1) Zoning District.2 A "front
yard" is defined as "the area contained between the street right-of-way line and the required
front yard building setback line." 3 While it is true that the 35 foot front yard setback along
Cumberland Drive may restrict the location of the Applicants' shed to some degree,
Applicants' Exhibit A-2 shows clearly that the shed can be located in the rear yard of the
property to the north or south of a row of arborvitae shrubs which currently exists without
encroaching into the rear yard setback area.4
In Borough of Ingram v. Zoning Hearing Board of Borough of Ingram, 545 A.2d 989
(Pa. Cmwlth. 1988) the court held that a hardship alleged by the property owner did not
justify the grant of a variance when the property owner could comply with an ordinance
requiring five foot rear and side yard setbacks simply by moving a proposed garage closer to
z Section 204-16.F(2)(a), North Middleton Township Zoning Ordinance.
' Section 204-12, North Middleton Township Zoning Ordinance.
4 The areas described above are shown in the photographs on Applicants' Exhibit A-6, pages 1 through 5.
the residence. See also Hirsch v. Zonin Hearin Board of Borough of Fox Chapel,
641 A.2d 32 (Pa. Cmwlth. 1994). Such is the case presently before the Board. The
Applicants have failed to demonstrate an unnecessary hardship where compliance with the
zoning ordinance can be achieved by moving the existing shed closer to their home.
The grant of a variance is clearly not necessary to enable the reasonable use of the
Applicants' property. The Applicants have utilized their property as their home for 20 years.
With or without a shed, it will continue to exist for the purpose for which it was intended, a
single family residence.
The zoning variance is generally granted only under exceptional circumstances, and
the applicant must satisfy all the criteria required by the statute. Pektor_v. Zonin Hearing
Board of Williams Townshi , 671 A.2d 295 (Pa. Cmwlth. l 996). The Applicants in the
present case have not met that burden.
DECISION
The Applicants' request for a variance to Section 204-16.F 2 c to locate an
accessory structure nearer than ten feet to the rear property line is denied.
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD
By:
NOTICE: ANY PERSON AGGRIEVED BY THE DECISION OF THE
ZONING HEARING BOARD MAY APPEAL TO THE COURT OF
COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE
TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS
DECISION.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL T. KEISER and
KATHY H. KEISER,
Appellants
Vs. : No. 08-4797 CIVIL TERM
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD
Appellees
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
SS.
TO: NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD,
We, being willing for certain reasons, to have certified a certain action between
MICHAEL T. KEISER and KATHY H. KEISER VS. NORTH MIDDLETON
TOWNSHIP ZONING HEARING BOARD, pending before you, do command you that
the record of the action aforesaid with all things concerning said action, shall be certified
and sent to our judges of our court of Common Pleas at Carlisle, within (20) days of the
date hereof, together with this writ; so that we may further cause to be done that which
ought to be done according to the laws and Constitution of this Commonwealth.
WITNESS, The Honorable EDGAR B. BAYLEY, J. our said Court, at Carlisle, PA.,
the I ITH day of AUGUST 2008.
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Curtis R. Long, Prothonotary
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MICHAEL T. KEISER and : IN THE COURT OF COMMON PLEAS OF
KATHY H. KEISER,
Appellants CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION -LAW
ZONING HEARING BOARD OF NO. 08-4797 CIVIL TERM
NORTH MIDDLETON TOWNSHIP,:
Appellee : LAND USE APPEAL
RETURN OF WRIT OF CERTIORARI
AND NOW, comes the Appellee, the Zoning Hearing Board of North Middleton
Township, by its Assistant Codes Enforcement Officer in and for the Township of North
Middleton as custodian of the records of said Board, and returns herewith the Writ of
Certiorari issued August 11, 2008, and submits herewith the following documents as the
record of the proceeding held before said Board:
1. Copy of Zoning Hearing Application of Michael T. and Kathy H. Keiser.
2. Copy of Proof of Publication from The Sentinel for the hearing held July 8,
2008.
3. Copy of map showing location of posting of notice on the property of the
applicant.
4. Copy of Decision dated July 8, 2008.
5. Copy of Board Minutes of July 8, 2008.
6. The transcript of testimony of said hearing has been ordered and will be filed
immediately upon receipt from the court reporter.
Benno, Jr.
Assis t Codes Enforcement Officer
Township of North Middleton
CERTIFICATE OF SERVICE
I hereby certify that I have this date served the foregoing Return of Writ of
Certiorari as filed this date with the Prothonotary of Cumberland County by sending a
copy thereof to the persons and in the manner set forth below:
Service by first class mail to:
Hubert X. Gilroy, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Michael T. and Kathy H. Keiser
2220 Circle Road
Carlisle, PA 17013
Victor A. Neubaum, Jr., Esquire
Malone & Neubaum
42 South Duke Street
York, PA 17401
Douglas and Denise Wells
131 Cumberland Road
Carlisle, PA 17013
- KA--'t J-S.?s Q
Michael R. Rundle, Esquire
Pa. I.D. No. 27768
Solicitor, Zoning Hearing Board of
North Middleton Township
2051 Spring Road
Carlisle, PA 17013
Date: August (;' , 2008
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NORTH MIDDLETON TOWNSHIP
CUMBERLAND COUNTY, PENNSYLVANIA
ZONING HEARING APPLICATION
1. I hereby apply for: (identify request and complete Ordinance Section)
A. Variance X
B. Special Exception
Ordinance Section 204-16 F (2-0
Ordinance Section
C. Appeal from Zoning Officer, other Municipal body or
official ° Ordinance Section
D. Substantive Challenge: Validity of Map/Zoning Ordinance
Ordinance Section
Phone No. 717)
2. Applicant's Name* Michael T. & Kathy H Keiser
Address 2220 Circle Road
Carlisle, Pa. 17013
Phone No. 717 243-9138
APPLICANT MUST BE PRESENT AT Mlt OF HEARING
3. Owner's Name Same as 2 above
Address
4. Applicant's Attorney Undecided
Address
5. Location of Property Affected Same as 2 above
6. Detailed Description of Use of Land:
A Zoning District R-1 Suburban Residential
B. Present Use Single Family Detached Dwelling plus
Accessory Structure
C. Proposed Use Same as 6B above
D. Expected Period of Time of Use N/A
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7. Reason for Request: (Insert Attachment if Necessary)
Please refer to attachments
8. All required additional information and exhibits in compliance with Section 204-125 Zoning
Hearing Board's Functions of the North Middleton Township Zoning Ordinance.
9. Fees: A Special use or Variance Request in;
1. Conservation District
2. Agricultural District
3. Agricultural Holding District
® Suburban Residential District
5. Hi-Density Residential District
Amount Due: $ 5 0 0.0 0 -
Fees: B. Special use or Variance Request in;
6. Neighborhood Commercial District
7. Highway Commercial District
8. Campus Industrial District
9. Industrial District
10. Scenic River District
Amount Due: $.5 0 0.0 0
Fee of Received
I certify the above information and submitted exhibits to be true, correct and complete. Any
information I have failed to supply may be grounds for the Zoning Hearing Board to dismiss
application.
I or We agree the hearing by the Board on this application may be tape recorded rather than
stenographically recorded. (Strike out if not agreed.)
APPLI;? MUST BE PRESENT AT TWE OF BEARING
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Date Da e
PROOF OF PUBLICATION
State of Pennsylvania, County of Cumberland
Erica Peterson, Classified Manager of The Sentinel, of the County and State aforesaid,
being duly sworn, deposes and says that THE SENTINEL, a newspaper of general
circulation in the Borough of Carlisle, County and State aforesaid, was established
December 13th, 1881, since which date THE SENTINEL has been regularly issued in
said County, and that the printed notice or publication attached hereto is exactly the
same as was printed and published in the regular editions and issues of
THE SENTINEL on the following day(s):
Tune 26,1uly 3, 2008
Affiant further deposes that he/she is not
interested in the subject matter of the
aforesaid notice or advertisement, and that
all allegations in the foregoing statement
as to time, place and character of
publication are true.
r
Sworn to and subscribed before me this
3rd day of July, 2008.
Notary 1-4ubhc
My commission expires: ? 1'9)oq
NOMMAL TEAL
SONMk A CANUP
Noway Public
CARLISLE BOROUGH, CUM AND COUMy
My COM"M ExpNw Jun a, 2009
COPY OF NOTICE OF PUBLICATION
If RETAIN THIS PORTION FOR YOUR RECORDS
nN SENTINEL - LEGAL
P.O. BOX 130, CARLISLE, PA 17013
AD NUMBER CLASS
351698 110 PUBLIC NOTICES
AD DESCRIPTION
PUBLIC NOTICE NORTH MIDDLETON TOWN
PUBLICATION INSERTIC
3 THE SENTINEL - LEGAL 2
TOTAL AD CHARGE
3 PROOF OF PUBLICATION
NORTH MIDDLETON TOWNSHIP
shoet 07/03/08
iGL 199.50
1PRF
START DATE
06/26/08
RATE NET AMOUNT
199.50
DAYS
PAY THIS AMOUNT
zoning: Keiser
7.00
206.50
75 * 3
;TOP DATE
07/03/08
247.80*
MESSAGE:
Thank you for advertising with The Sentinel.
Deadlines for in-column legal advertisements: Monday is Friday at
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Thursday is Tuesday at 12 Noon; Friday is Wednesday at 12 Noon; Sunday
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Fax your legals to 717-243-3754 attention Tammy Shoemaker
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Please send a cover letter including your name and address as an attachment
DETACH AND RETURN THIS PORTION WITH YOUR PAYMENT
THE SENTINEL - LEGAL zonin
P.O. BOX 130 CARLISLE PA 17013 g: Keiser
AD NUMBER CLAS'S0 START DATE STOP DATE
351698 PUBLIC NOTICES 06/26/08 07/03/08
AD DESCRIPTION
PUBLIC NOTICE NORTH MIDDLETON TOWN BILLING DATE
07/03/08 TELEPHONE NUMB R
717-243-8550
NORTH MIDDLETON TOWNSHIP
2051 SPRING ROAD
CARLISLE, PA 17013
GROSS AMOUNT OF
247.80
DUE AFTER 08/02/08
TOTAL AMOUNT DUE
206.50
ENTER AMOUNT ENCLOSED
20200000003516980000000000000002478000000206509
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NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD
APPLICANTS' NAMES:
APPLICANTS' ADDRESS:
OWNERS' NAMES:
OWNERS' ADDRESS:
PROPERTY LOCATION:
CASE NO:
DATE OF APPLICATION:
DATE OF HEARING:
DATE OF DECISION:
BOARD MEMBERS PRESENT:
SOLICITOR:
Michael T. Keiser and Kathy H. Keiser
2220 Circle Road,
Carlisle, Pennsylvania 17013
Michael T. Keiser and Kathy H. Keiser
2220 Circle Road,
Carlisle, Pennsylvania 17013
2220 Circle Road,
Carlisle, Pennsylvania 17013
08-05
June 17, 2008
July 8, 2008
July 8, 2008
Henry M. Weeks, Chairman; James E. Hare;
James R. Bennett
Michael R. Rundle, Esquire
FINDINGS OF FACT
1. The Applicants are Michael T. Keiser and Kathy H. Keiser, his wife, who reside at
and own property located at 2220 Circle Road, Carlisle, Pennsylvania.
2. The Applicants purchased said property in June, 1988.
3. Said property is located in the Suburban Residential (R-1) Zoning District.
4. Said property is also known as Lot 60 in the Subdivision Plan of Section C of "Creek
View Heights," as recorded in the Office of the Recorder of Deeds in and for
Cumberland County, Pennsylvania in Plan Book 25, Page 49.
5. Said lot has frontage on Circle Road of 175.92 feet, frontage on Cumberland Drive
of 133.70 feet, and a rear property line of 103.14 feet.
6. Said property is a corner lot located in the northeast quadrant of the intersection of
Cumberland Drive and Circle Road.
7. When the Applicants purchased said property it was improved with a residential
dwelling facing Circle Road and a block and wooden shed approximately eight feet
wide, twelve feet long, and six feet high.
8. The rear wall of said shed was located in close proximity to the rear property line.
9. In 1993 the Applicants constructed an addition to their home and erected a six foot
high privacy fence along a portion of the northern and eastern (rear) property lines.
10. In the fall of 2004 the Applicants desired to replace the existing shed with a newer
and larger shed.
11. Applicant Michael Keiser contacted Ryan Hovis, who was then the Assistant Codes
Enforcement Officer for North Middletown Township to discuss the construction of
the new shed.
12. Mr. Hovis advised the Applicant that a building permit was not required for
construction of an accessory structure such as a shed with an area of 1,000 square
feet or less and that the shed could not be located within the front yard of the
property.
13. In the fall of 2004 the Applicants dismantled the existing shed.
14. In the spring of 2005 the Applicants began construction of their new shed.
15. The new shed is located within two feet of the rear property line.
16. The North Middleton Township Zoning Ordinance of 1997 provides that accessory
structures be set back a minimum of ten feet from the rear property line. 1
17. In March, 2008 the North Middleton Township Codes Department received a
complaint from Denise Wells, an owner and occupant of property adjoining the
Applicants' property on the east, concerning the location of the Applicants' shed.
18. Following receipt of an enforcement notice from the North Middleton Township
Codes Department, the Applicants filed an application for a variance to
Section 204-16.F(2)(c) of the North Middleton Township Zoning Ordinance relative
to the rear yard setback requirement.
19. Numerous sheds are located in the general vicinity of the Applicants' property within
the rear and side yard setback areas as provided by the North Middleton Township
Zoning Ordinance of 1997.
1 See North Middleton Township Zoning Ordinance Section 204-16.F(2)(c).
20. The Applicants are aware of only one such shed being erected after the enactment of
the current zoning ordinance, that shed being located at 2 Mountain View Drive.
21. The Applicants' property slopes from front to back dropping approximately 12 feet
within a distance of approximately 133 feet.
22. In May, 2007 sand from the Applicants' property washed onto the Wells' property
during a heavy rainstorm.
23. Applicant Michael Keiser removed said sand and apologized to Mr. Wells.
24. The existence of the Applicants' shed in its present location is a contributing factor
to increased water flow onto the Wells' property.
25. Sufficient room exists for the Applicants to locate their shed in the rear yard of the
property without violating the setback requirements of the zoning ordinance.
26. The Applicants' shed does not have a permanent foundation.
27. The Applicants utilized concrete blocks salvaged from the original shed as a
foundation for the new shed.
28. The Applicants did not apply for a zoning permit pursuant to Section 204-131 of the
North Middleton Township Zoning Ordinance prior to construction of the new shed.
DISCUSSION
The Applicants have requested a variance to Section 204-16.F(2)(c) of the North
Middleton Township Zoning Ordinance to permit the location of a shed within two feet of
the rear property line of their property. The ordinance requires that such structures be set
back a minimum of 10 feet from the rear property line.
The criteria for the granting of a variance is set forth in Section 18.06 of the North
Middleton Township Zoning Ordinance and Section 910.2 (53 P.S. Section 10910.2) of the
Municipalities Planning Code and has been summarized by the Pennsylvania Supreme Court
in Larsen v. Zoning Board of Adjustment of the City of Pittsburgh, 672 A.2d 286, 289 (Pa.
1996) as follows:
1. That an unnecessary hardship exists which is not created by the party seeking
the variance and which is caused by unique physical circumstances of the
property for which the variance is sought;
2. That a variance is needed to enable the party's reasonable use of the property;
3. That a variance will not alter the essential character of the district or
neighborhood or substantially or permanently impair the use or development
of the adjacent property such that it is detrimental to the public welfare; and
4. That the variance will afford the least intrusive solution.
The Applicants contend first that the topography of their lot constitutes a unique
physical circumstance creating an unnecessary hardship requiring a variance. While it is true
that the Applicants' lot slopes from front to rear with a drop of approximately 12 feet over a
133 foot depth, the Applicants have failed to demonstrate that the topography would prevent
the construction of a shed in the rear yard of the property without violating the setback
requirement. The reason the shed was constructed in its present location was to maximize
the area of the rear yard for family activities. The mere desire of a property owner to provide
more room for family members' enjoyment fails to constitute the type of unnecessary
hardship required by law for the grant of a variance. Larsen v. Zoning Board of Adjustment
of the City of Pittsburgh, sera.
The Applicants argue further that the fact that their property is a corner lot reduces
the size of their rear yard thereby restricting the location of the shed. Under the zoning
ordinance corner lots are subject to a front yard setback along each street that the lot abuts.
As is shown on Applicants' Exhibit A-2, their lot is subject to a 35 foot building setback
along Circle Road and along Cumberland Drive. Accessory structures such as sheds may not
be located within the front yard in the Suburban Residential (R-1) Zoning District.2 A "front
yard" is defined as "the area contained between the street right-of-way line and the required
front yard building setback line."3 While it is true that the 35 foot front yard setback along
Cumberland Drive may restrict the location of the Applicants' shed to some degree,
Applicants' Exhibit A-2 shows clearly that the shed can be located in the rear yard of the
property to the north or south of a row of arborvitae shrubs which currently exists without
encroaching into the rear yard setback area.4
In Borough of Ingram v. Zonin Hearing Board of Borough of Ingram, 545 A.2d 989
(Pa. Cmwlth. 1988) the court held that a hardship alleged by the property owner did not
justify the grant of a variance when the property owner could comply with an ordinance
requiring five foot rear and side yard setbacks simply by moving a proposed garage closer to
2 Section 204-16.F(2)(a), North Middleton Township Zoning Ordinance.
3 Section 204-12, North Middleton Township Zoning Ordinance.
The areas described above are shown in the photographs on Applicants' Exhibit A-6, pages I through 5.
the residence. See also Hirsch v. Zoning Hearing Board of Borough of Fox Chanel,
641 A.2d 32 (Pa. Cmwlth. 1994). Such is the case presently before the Board. The
Applicants have failed to demonstrate an unnecessary hardship where compliance with the
zoning ordinance can be achieved by moving the existing shed closer to their home.
The grant of a variance is clearly not necessary to enable the reasonable use of the
Applicants' property. The Applicants have utilized their property as their home for 20 years.
With or without a shed, it will continue to exist for the purpose for which it was intended, a
single family residence.
The zoning variance is generally granted only under exceptional circumstances, and
the applicant must satisfy all the criteria required by the statute. Pektor_v. Zoning Hearing
Board of Williams Township, 671 A.2d 295 (Pa. Cmwlth. 1996). The Applicants in the
present case have not met that burden.
DECISION
The Applicants' request for a variance to Section 204-16.F(2)(c) to locate an
accessory structure nearer than ten feet to the rear property line is denied.
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD
By;
NOTICE: ANY PERSON AGGRIEVED BY THE DECISION OF THE
ZONING HEARING BOARD MAY APPEAL TO THE COURT OF
COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE
TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS
DECISION.
North Middleton Township Zoninq Hearing Board
Township Building
2051 Spring Road
Carlisle, PA 17013
Minutes of the Zoning Hearing Board
Tuesday, July 8, 2008
The meeting was held at the North Middleton Township Building on Spring Road, in Carlisle, PA.
Attendance
Board Members-Henry Weeks (Chairman), Jim Bennett (Vice-chairman), and James Hare (Secretary)
Solicitor-Michael Rundle
Assistant Codes Enforcement Officer-Ruben Lao
Reporter-Jen Chance
Visitors
Michael Keiser-2220 Circle Road, Carlisle, PA
Kathy Keiser-2220 Circle Road, Carlisle, PA
Denise Wells-131 Cumberland Drive, Carlisle, PA
Doug Wells-131 Cumberland Drive, Carlisle, PA
Victor Neubaum-42 South Duke Street, York, PA
Ralph Thomas-107 Winchester Gardens, Carlisle, PA
Call to Order
Chairman Weeks called the meeting to order at 7:00 p.m. He asked Mr. Lao to lead the Pledge of
Allegiance.
Michael Keiser #08-05 Variance Reauest
Mr. Weeks referred to the Application from Mr. Keiser. He asked Mr. Bennett to read it:
Application #08-05, Michael T. and Kathy H. Keiser of 2220 Circle Road, Carlisle, PA, Parcel Number. 29-
16-1094-344, want a rear yard property line Setback Variance for a storage shed they completed in 2005
and presently have in place. A Setback Variance is required for the shed to remain where it is, per North
Middleton Township Zoning Ordinance 204-16.F.(2)(c).
Mr. Weeks asked Mr. Lao if the property had been properly posted and if the hearing had been properly
advertised. Mr. Lao stated that the property had been properly posted and that the hearing had been
properly advertised in The Sentinel. He added that notices had been sent to all adjoining property owners
in the proper time span.
Mr. Weeks turned over the proceedings to Solicitor Rundle. Mr. Keiser came forward. Mr. Rundle asked
Mr. Keiser if it was correct that he would be representing himself this evening. Mr. Keiser stated that that
was correct. Mr. Rundle asked if there may be a neighbor who wishes to offer opposition to the grant of
this variance. Mr. Neubaum came forward and stated that that was correct. He identified himself as Victor
Man 6190 NOT DOW IndeN INK T198 t Aft 8, 2088
K
Neubaum and gave his office address as 42 South Duke Street, York, Pennsylvania. He stated that he
was an attorney representing Doug Wells and Denise Wells, who were sitting to his immediate right. Mr.
Neubaum explained that the Wells own the property at 131 Cumberland Drive, which is the property
immediately adjacent that is most impacted by the location of the shed. Mr. Neubaum stated, "We are
here in opposition to the Application, and we wish to participate in the case in opposition to the
Application." Mr. Neubaum and his clients came forward and sat at the table to the left of the Applicants.
Mr. Rundle asked Mr. Keiser if he would be offering the testimony in support of his application this
evening. Mr. Keiser indicated that he would be. Mr. Keiser was sworn in and identified himself as Michael
T. Keiser, of 2220 Circle Road, Carlisle, PA. Mr. Rundle asked Mr. Keiser if it is that property upon which
he is requesting the Variance. Mr. Keiser tested that that was correct. Mr. Rundle asked Mr. Keiser if he
owns the property jointly with his wife. Mr. Keiser again stated that that was correct. He identified his wife
as Kathleen H. Keiser, and noted that she was sitting to his right.
Mr. Rundle asked Mr. Keiser how long he has owned the property. Mr. Keiser testified that the property
had been purchased in June of 1988 and that he and his wife have lived in the home for approximately 21
years. Mr. Rundle said it was his understanding from the Application that prior to the shed that currently
exists, there had been an earlier accessory structure. Mr. Keiser replied that it was a very dilapidated
earlier structure which had been made out of concrete block and plywood. He gave the dimensions as
roughly 8 feet wide by 12 feet in length and noted that it had an attached roof but an open-sided area that
was used for the storage of firewood. He testified that it was located on the eastern property line of his
property.
Mr. Rundle noted that Mr. Keiser had attached a number of drawings to his Application. At this point Mr.
Rundle asked Mr. Keiser to provide his occupation to the Board. Mr. Keiser testified that he is a civil
engineer and is employed by the Borough of Carlisle. Mr. Rundle asked Mr. Keiser if it would be a fair
statement to say that he is familiar with zoning hearings. Mr. Keiser indicated that this was correct. He
stated that he has provided expert testimony previously before zoning hearing boards in Commonwealth
Court and in Magistrate Court. Mr. Rundle said to Mr. Keiser that he would allow him to present his
application in "free form" since he is familiar with the procedures, while noting that it may be necessary to
stop to have exhibits marked, and things of that nature. Mr. Keiser indicated that he understood. Mr.
Rundle asked Mr. Keiser to proceed.
Mr. Keiser proceeded to present his application:
In addition to my employment background, I've been employed in municipal government for almost 30
years; 21 of those years was with Carlisle Borough as their Assistant Director of Public Works and their
Municipal Engineer. I'm a registered professional engineer in the State of Pennsylvania and the State of
Montana. As I said earlier, I've provided expert testimony in matters of subdivision, land development,
zoning and code issues, and for this particular case, in stormwater management issues. As an expert in
the past, and without objection, not only would i consider myself a co-applicant this evening, I'd also like
you to accept me as an expert witness in this field.
Mr. Rundle responded to Mr. Kaiser's request. He stated that if expert testimony is required at some
point, there will be voi dire on it, conducted by Mr. Neubaum if he desires to take it. Mr. Rundle asked Mr
Keiser to stick to the "lay testimony" concerning his application.
Mr. Keiser continued:
As Mr. Bennett pointed out, we're here this evening requesting a Variance from the North Middleton
Township Zoning Ordinance, and it's specifically Section 204-16.F.(2)(c), pertaining to a 10-foot required
rear yard setback for an existing accessory structure on our property. As i said earlier, we purchased the
property in 1988. We own what's legally described as Lot 60, a .42 acre tract which is part of the
Creekview Heights subdivision, Section "C," which was originally approved by the North Middleton
Township Board of Supervisors on June 6, 1974. This plan is recorded in the Cumberland County
Recorder of Deeds, at Plan Book 25, page 49, and I'd like to enter that as an exhibit now if I could please.
M0>1111111es dthe NEMON Neafto Bra11%TnOaJOY 0, 2000 2
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Mr. Rundle labeled as Applicant's Exhibit A-1 the Subdivision Plan for Creekview Heights, Section "C."
Mr. Rundle asked Mr. Keiser to continue with his testimony:
As part of my testimony, 1 pointed out that we own Lot 60. It's highlighted in yellow on the map. This
particular section was a 32-lot subdivision, part of an original 135-lot subdivision that was originally
approved with the Preliminary Plan in 1971. We own a comer lot at the intersection of Circle Road and
Cumberland Drive. Circle Road is a 50-foot right-of-way. Cumberland Drive is a 60-foot right-of-way.
Interesting to note on this particular plan, the Plan was approved with front yarn setbacks only, no near or
side yard setbacks. As I mentioned in my initial testimony, the Plan was approved by the Board of
Supervisors on June 6, 1974. It was recorded in the Cumberland County Recorder of Deeds Office on
June 21, 1974, Plan Book 25, page 49.
The current zoning of our lot is R-1, Suburban Residential. Accessory structures are uses permitted by
right within the zoning designation. Improvements on our current lot include a single-family detached
dwelling, a 12 by 16-foot accessory structure, a 15-foot by 14-foot wooden deck, a 6-1hot tall wooden
privacy fence along portions of our northern property line and our eastern property line, a split--rail fence
along the remaining portions of our northern and eastern property lines, and various species of mature
landscaping. I'd now like to enter the plot plan exhibit as my next exhibit.
At this point Mr. Rundle marked as Applicant's Exhibit A-2, what he said appears to be a plot plan of Lot
60. He asked Mr. Keiser to continue:
I'd like to spend a few minutes describing what is drawn on here. North would be to the right of the plan.
This is a scale drawing of our property at a scale of 1"=30'. Note that we are at the comer of Cumberland
Drive and Circle Road, a 50-1oot right-of-way on Circle Road, 34-1oot cartway. Cumberland Drive is a 60-
foot right-of-way, with a 40-foot paved cartway. You'll see on this sketch plan our 35-toot front yarn
setback requirements, our single-family detached home, our deck, the shed, which shows encroachment
into the rear yard setback at 2 feet from the property line on the northeastern section of our shed and 3
foot at the southeastern section of our shed.
Mr. Rundle asked if the encroachment would actually be 8 feet and 7 feet respectively. Mr. Keiser
acknowledged that Mr. Rundle was correct. Mr. Keiser continued:
The plan also shows that we own approximately 176 feet along Circle Road, which is our western
property line, 143.4 feet along our northern property line, 103.14 feet along our eastern property line,
which is the joint ownership line with Mr. and Mrs. Wells, and 133.70 feet along our southern property
line.
Mr. Rundle asked Mr. Keiser to state for the record where the Wells property would be situated with
respect to this drawing. Mr. Keiser testified that this property is along the 103.14 feet, or the eastern
boundary. Mr. Keiser continued:
Also noted on this plan are mature trees, the 10-foot required side yard and rear yarn setbacks per the
Zoning Ordinance. Depicted by Xs" is our 6-foot tall wooden privacy fence. That shields a large portion
of our shed location. Those are indicated by the 'QC's" on the plan. Indicated by the dots or the 'Os" is the
remaining split-rail fence that we have on our property, and that cbes follow our property lines along the
northern and eastem portions of the lot. Down the center of the lot between the shed and our existing
home you'll see a series of dots with bushes drawn around. Those are the arbovide screening that we put
in place that shields our shed plus provides us some privacy for our deck area. Coming out of the rear of
our home you will see the lines that are marked with a "W" and an "S. " Those are our water and sewer
laterals that exit the home and are connected to the public infrastructure in Cumberland Drive.
Our accessory structure is a wood shed measuring 12 feet by 16 feet, times 10.5 feet high, consisting of
192 square feet. 1 constructed the shed on site starting in the fall of 2004, and completing the structure in
June of 2005. As we talked about earlier, the shed replaced a smaller structure of approximately 8 feet
wide by 12 feet long by approximately 6 feet tall.
01111101114 91 IN NET Uldlt! Nostlbg hard, TII1 NSY,!1111118, 2008 3
At this point Mr. Rundle asked Mr. Keiser if he could show where this structure was located. Mr. Keiser
indicated that he would show this in an exhibit very shortly. He continued:
I demolished this structure in the fall of 2004, and using the concrete block that it was partially
constructed of, i constructed the foundation for the new shed, which was finished in 2005. The next
exhibit / have is just our receipts for the actual materials we used to construct the shed. The purpose of
these is not to demonstrate a financial hardship; just to demonstrate the time period in which we
constructed the shed.
Mr. Rundle noted that he had been handed a 3-page packet which appeared to have register receipts
from Lowe's and Home Depot. Mr. Rundle labeled this as Applicant's Exhibit A-3. Mr. Keiser pointed out
that the material receipts start in April of 2005 and continue through May and June of 2005. Mr. Keiser
submitted his next exhibit. Mr. Rundle labeled this as Applicant's Exhibit A-4. Mr. Keiser continued:
This particular map is a Microsoft Earth map that was taken in 2008 and is an aerial view of our property.
Depicted on the map you will see Circle Road, Cumberland Drive, Mountain View Drive, with north to the
top of the map. Circled in red, which now has turned somewhat yellow, is our existing shed structure. Also
depicted in red or yellow, depending on your color perception, is our approximate eastern and northern
property line. You'll see that the shed is located near our eastern property line.
The next exhibit, and I believe this will be A-5, is another aerial mapping, and it was taken from
photography available dated April 6, 2003 from Goog/e Earth and you'll notice that it's our lot again
depicted with the eastern and northern property lines shown in a red line, and, circled' in that area was our
previous shed. Again, north would be to the top of this exhibit.
Mr. Rundle referred to the previous shed. He noted that no dimensions are shown on A-5. He asked Mr.
Keiser how far from the eastern property line the prior shed was located. Mr. Keiser testified that it was
actually affixed to their 6 -foot tall wooden fence. He added that the back of it shared a wall with the
wooden fence. Mr. Keiser then submitted his next set of exhibits. He described it as a complete set of 10
photographs depicting the existing shed. He noted that one copy was provided for each Zoning Hearing
Board member. Mr. Rundle collectively labeled Mr. Keiser's packet of photographs as A-6. Mr. Keiser
pointed out that each photograph had a number in the upper right-hand corner. He explained that he
would refer to these by number. What follows are Mr. Keiser's descriptions and explanations of each
photograph in A-6:
The first photograph, depicted as #9, is a picture of our shed, looking in a southeasterly direction.
It's a view from our back yard. What / want to note in this particular photograph is that the shed
was lowered in the front. It was actually dug into the ground to make the height as small as
possible. You'll note that the back of the shed near the fence is higher than the front. Actually,
when 1 constructed the shed / had to cut the door by 8 inches just so / could open it due to the
slope of the ground, but the reason that we originally constructed it this way was based on a
conversation I had with Mr. Wells that when i built this shed, 1 would keep the shed as low as
possible so that the majority of the shed would be shielded by our existing 6-foot tall privacy
fence.
• The next photograph #2 is another shot of the shed in a southeasterly direction, and it's a view
from sitting on our deck.
• The next photograph, #3, is looking at the shed in a northeasterly direction, standing at
Cumberland Drive. Note the arbovida shielding the shed's view from the Cumberland Drive right-
of-way. You'll also note our 6-foot tall privacy fence is in the center of the photograph. The Wells'
6-foot privacy fence would be in the right center of the photograph, and that's the Wells' home in
the right center of the photograph.
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4
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• The next photograph, #4, again is another picture of our shed looking north from Cumberland
Drive along our rear property line, or our eastern property line. The fence is on the property line,
so you'll note the distance between the shed and the property line in this photograph.
• Photograph #5 is looking in a northwesterly direction from Cumberland Drive. Again the split-rail
fence in this photograph is roughly our eastern property line, the shed in the background.
• The next photograph, #6, is looking west from Cumberland Drive, and I took this photograph soon
after I was notified by Mr. Lao that he was going to be issuing us an enforcement notice, and I
took the photograph to give you an idea of the visibility of the shed before the leaves really came
in in full foliage. You can see what would be typically visible during a winter month or early spring.
• The next photograph is the same view. This is photograph #7, looking from Cumberland Drive
after the leaves fully came in, two months later from the previous photograph. You can now see
that the shed, except for the roof area, is fairly invisible.
• The next photograph, #8, is looking west from Cumberland Drive, across the Wells property. A
typical view of what the shed looks like in that direction. The Wells' home is in the right center of
the picture. Our home is above the shed and in the top left center behind the douglas fir.
• Photograph #9 is looking west from Cumberland Drive. It's a close-up view of the previous
photograph, with the shed in the background, our 6-foot tall privacy fence, and some landscaping
that Mr. and Mrs. Wells installed to help shield the view from their vantage point.
• The last photograph, #10, is a picture of the rear of the shed. The privacy fence is our privacy
fence. The shed is on the right side of the photograph.
Mr. Keiser continued with his testimony:
Prior to starting construction of our shed in 2004, 1 had originally contacted North Middleton Township and
I spoke to their then Code Officer, Ryan Hovis. Mr. Hovis advised me that the Township had no
requirements for Building Permits that he was aware of. He was aware that we were replacing an existing
structure. The Township at that time had recently adopted the new statewide Pennsylvania Building
Code, the Uniform Construction Code, or the UCC as it's more commonly referred to today. The UCC
Code exempts, among many things, residential accessory structures from the requirements of Building
Permits if they are 1,000 square feet or less in area.
Mr. Hovis also informed me that the structure could not be located in our front yard and because we own
a comer lot, we have two front yards. We were well aware of that requirement. We decided at the time
that our shed would be located in our rear yard next to our 6-foot tall wood privacy fence, in the same
general location as the previous structure. Mr. Hovis was familiar with our lot. He at the time had been
inspecting a new home that was being constructed across Cumberland Drive from our residence. The
property's address is 2 Mountain View Drive. That was the extent of our contact until we had been
recently contacted by Mr. Lao, concerning our shed's construction.
Mr. Keiser presented his next exhibit, which was labeled as Applicant's Exhibit A-7. This exhibit,
according to Mr. Keiser, documented his conversations with Mr. Hovis concerning the Building Permit
process. Mr. Keiser said that this document also thanked Mr. Hovis for his willingness to contact the
Township and reiterate our previous conversations. At this point Mr. Neubaum objected to A-7 as self-
serving and hearsay. The objection was overruled. Mr. Keiser's next exhibit was described by Mr. Keiser
as a copy of the Uniform Construction Code, specifically Chapter 403, titled 'Administration," and Chapter
403.1(b), "Exclusions and Exemptions.' Mr. Rundle stopped Mr. Keiser at this point. Mr. Rundle noted
that this document deals with Building Codes and requirements for a Building Permit. Mr. Keiser
acknowledged that this was correct. Mr. Rundle pointed out to Mr. Keiser that there is no allegation to his
knowledge that Mr. Keiser has been cited for failure to have a Building Permit or any averment that a
Men of do NET hda NOW" 198K TUMOV, INN 8, 2008 5
Building Permit is actually required for this particular shed. Again, Mr. Keiser acknowledged that this was
correct. Mr. Rundle asked Mr. Keiser to state the purpose of the exhibit Mr. Keiser replied that the
purpose of the exhibit is to substantiate the previous exhibit and his conversation with Mr. Hovis on what
permits were required or were not required. Mr. Rundle marked this exhibit as A-8. Mr. Keiser said he
wished to call attention to Section 403.1(b), "Exclusions and Exemptions." The exhibit was not read aloud.
Mr. Rundle indicated that it would speak for itself. Mr. Keiser continued with his testimony:
We received an enforcement notice from Mr. Lao dated April 15, 2008. This notice contained several
errors and was later rescinded. The April I e notice listed violations of side yard setback, accessory
structures as a permitted use, and a drainage issue. A second enforcement notice was issued by Mr. Lao,
dated June 3, 2008, cifing only the Zoning Ordinance requirement pertaining to rear yard setback.
Although the drainage issue has been resolved, I want to spend some lime this evening on it so there is
no question as to how the drainage was originally perceived to work and how it works today in our
neighborhood. The next exhibit 1 have is a map that should be in your packets, the Erosion and
Sedimentation Soil Plan.
Mr. Rundle labeled this exhibit as A-9. Mr. Keiser testified that he had obtained this exhibit from the
Township files on the original subdivision plan. He stated that his lot is shown in yellow. He noted the
existing contours of his lot on Circle Road at 444 feet, and the contours at the property line with the Wells'
at 432 feet. Mr. Keiser pointed out that this is a drop in elevation of 12 feet across the property. He noted
that designated in blue on A-9 are the drainage patterns as envisioned at the time of the subdivision
approval. Mr. Rundle said he wished to clarify for the record that when Mr. Keiser indicated "designated in
blue" on the record, for whatever reason the blue is orange. Mr. Rundle asked Mr. Keiser to proceed. Mr.
Keiser described the stormwater drainage system of the neighborhood in some detail and explained how
it works.
Mr. Keiser noted that his next exhibit ties with his previous exhibit. Mr. Rundle labeled this exhibit as A-
10. This exhibit was several typed pages, which Mr. Keiser stated was the Erosion and Sedimentation
Control Report, Section "C," for Creekview Heights. He noted that this document had been prepared by
William Whittock, a professional engineer from Camp Hill. The date on the front of A-10 was June 6,
1974. Mr. Keiser pointed out that there are certain soil conditions identified in this report and also
identified on the map. He referred to and described some of these. Mr. Keiser said he wished to call
attention to the soil conditions of the Wells' property which were described on page 4 of A-10. He read the
following into the record:
• This particular soil is found on slopes ranging from 3-10%. The slopes are moderately eroded.
The soil tends to be found moderately deep and moderately well to somewhat poorly drained. It is
underlain with shale to a depth of bedrock 5-7 fleet. Building sites may be subject to seasonal high
water.
Mr. Keiser stated that the key point is, "building sites may be subject to high water." He presented his next
exhibit, which he said was a series of 10 photographs. Mr. Rundle marked this packet of photographs as
Applicant's Exhibit A-11. Mr. Keiser again pointed out that the photographs are numbered in red in the
upper right-hand comer of each photograph. What follows are Mr. Keiser's descriptions and explanations
of each photograph in A-11:
• The first photograph, #1, again is looking ... and I want you to be thinking about drainage in these
photographs... This particular photograph is looking northwest from Cumberland Drive and
designates the start of the slope drainage Swale across the Wells property. This swale collects
surface runoff from adjoining property and transfers the runoff to the north to an underground 24-
inch drainage pipe which 1've previously described.
• The next photograph, #2, is a view looking northwest from Cumberland Drive. The drainage
swale is very gradual at this point, and goes between the white dogwood and the red crab apple
bush and heads towards the yellow bush where it goes underneath the Wells' privacy fence,
which is the darker 6-foot tall fence. Ours is the lighter 6-foot tall fence.
NNUm of do NOT Zed Neaft 8e811d,TMOV,111118, 2888 6
• The next photograph, #3 is looking northeast from our back yard, and here you can get a better
idea of the swale area. The photograph was taken in our back yard. The split-rail fence is our
property line. You can see the slope there dropping off to a low point in about the center of the
photograph.
• The next photograph, #4, is looking northeast from our property. Note the swale becomes more
defined as it goes underneath the Wells' wood privacy fence. Note the opening underneath the
fence, roughly in the arch of the red bush.
• The next photograph, #5 is looking northeast from Cumberland Drive. This is an enhanced view
of the previous photograph. You can see the depression underneath the fence. The Wells' fence
again is the darker of the two fences.
• Photograph #6 is even a more close-up view of the swale area going undemeath their fence.
• Photograph #7. This is looking northeast from our back yard. Its a view of the swale area and the
Wells' rear fence which is located in the center of the swale. Note the gaps underneath the fence,
and if you look up in the upper left-hand corner of the photograph, you will sea the swale
continuing to the north as I described on two exhibits prior.
• Photograph #8. In this particular photograph, I'm standing in the back yard of Howard Swart,
which is three property owners north of our location, and I'm looking southwest. (At this point Mr.
Weeks asked Mr. Keiser to say the lot number. Mr. Keiser stated that this was Lot 63. He noted
that he was standing on about the fifth arrow on the provided map. Mr. Keiser continued). This is
a view looking southwest from the center of the swage towards the Wells' fence on their northern
property line. The dark area in the center of the photo is where the previous photo was taken
from. You can very easily depict the swale in this photograph.
• Photograph #9 is the inlet box I described previously located at Lot 64 and 65. That's where the
surface water enters the underground storm drain. The original subdivision plan was laid out and
designed to incorporate this stormwater flow. That stormwater flow goes in the same direction
today.
Photograph #10 was taken from our property during a heavy rain. The Wells' fence is on the left.
Our fence and shed are on the right. On this particular day I invited Ruben out to the site as well
to view the drainage because the original claim filed by Mrs. Wells was that runoff was creating a
problem for her fence because of our shed. After Ruben's investigation and after our providing
additional information, that claim was removed from our enforcement notice. This day we
received almost an inch of rain. When I took this photograph, you can actually see the raindrops
coming down. There is no runoff leaving our site during this particular event.
Mr. Keiser indicated that he had two final exhibits he wished to show. He stated that the first is a series of
19 photographs. Mr. Rundle marked this collection of photographs as A-12. Mr. Keiser stated that these
particular photographs were taken in the immediate neighborhood within ten-minute walking distance of
his property. He again pointed out that the photographs were numbered 1-19 in the upper right hand
comers of the photographs. Mr. Kaiser continued:
The first two photographs are the house I talked about earlier that was being constructed when our shed
was being constructed in 2005. This is a view of 2 Mountain View Drive, directly across Cumberland Drive
from our property. This is also a corner lot.
At this point Mr. Keiser stated that he had another exhibit. He described it as a Zoning Permit that had
been issued by North Middleton Township Zoning Officer, Mr. Fegley. Mr. Rundle labeled this exhibit A-
13. Mr. Keiser continued:
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This home was constructed in 2005, and in 2006 Mr. Fegley issued a Zoning Permit for a 6-foot tall fence
This property is a corner property. It has a 354oot front yard setback. Your Zoning Ordinance, Section
20426, and it's found on page 75 of your zoning book if you have it with you, allows no fence greater
than 3 foot tall in the front yard.
At this point Mr. Rundle asked Mr. Keiser what the relevance is of this. Mr. Keiser stated, "The relevance
of this exhibit is that we believe there has been inconsistent enforcement in North Middleton Township
conceming setback requirements particular to accessory structures. This is just one small example of that
inconsistent enforcement in the Zoning Ordinance."
Mr. Keiser continued with his description of the first two photographs from A-12:
Also in this photograph you will see a shed that was placed there without a permit. That shed is also
located in the front yard in violation of the zoning requirements. Photograph #2 is just another picture of
the same property.
Mr. Keiser proceeded to describe photographs #3 through #19 from A-12. He testified as to the nearby
address that each photo was taken. For each of the depicted sheds, Mr. Keiser described what he said
were violations of one or more of the setback requirements.
Mr. Keiser stated that this concluded his initial testimony. He indicated that he had a summation in which
he would address the hardships of his case, based on the Municipalities Planning Code. He asked the
Board for any questions of himself. At this point Mr. Rundle stated to Mr. Neubaum that he could cross-
examine Mr. Keiser. Mr. Neubaum proceeded to cross-examine.
Mr. Neubaum asked Mr. Keiser if he knew when the zoning was adopted in North Middleton Township.
Mr. Keiser replied that he had been told by Mr. Fegley that it was 1978. Mr. Neubaum asked Mr. Keiser if
he knew whether the sheds he pointed out in the neighborhood had existed before 19'78 or after 1978.
Mr. Keiser stated that the only one he was certain of is based on the Zoning Permit he had provided in
connection with photos #1 and #2. Mr. Neubaum asked Mr. Keiser if he took any dimensions of the actual
sheds. Mr. Keiser testified that he did not. He added that he would have had to trespass to do that.
Mr. Neubaum referred to picture #5 which he said he wished to use as an example of a shed. He asked
Mr. Keiser if the size of those are doors are larger, smaller, or the same as the size of the doors on his
shed. Mr. Keiser replied that he would not begin to speculate. Mr. Neubaum asked Mr. Keiser if his
answer would be the same if he was shown picture #11. Mr. Neubaum asked if the doors were the same
size, larger, or smaller than the shed doors that face his house in #1. Mr. Keiser replied that again, he
could not compare. Mr. Neubaum asked Mr. Keiser if it was correct that he could not say that all of the
buildings pictured are, in area and volume, smaller, larger, or the same size as his particular structure. Mr.
Keiser replied, "That's correct."
Mr. Neubaum noted to Mr. Keiser that he had said, prior to his testimony on the drainage history of the
subdivision, that the drainage issue was resolved. Mr. Neubaum asked Mr. Keiser what he meant by that.
Mr. Keiser responded to the question:
The drainage issue... what / meant by that is my initial enforcement notice that was issued to me on April
I e of this year listed a drainage concern expressed by Mrs. Wells. Upon notifying Mr. Lao of my position
concerning other things in the enforcement notice, and concerning the drainage issue in general, and
inviting Mr. Lao out during a major rain event, Mr. Lao decided to remove that from my enforcement
notice.
Mr. Neubaum asked Mr. Keiser if there was a point in time when he, by permission, came over to the
Wells property to clean up some sand that arrived on their from property from Mr. Keiser's property. Mr.
Keiser testified that this was correct. He said he believed that the date was May the 10"' of 2007. Mr.
Neubaum asked Mr. Keiser if it was some sand from his property that he had removed, from the Wells
property. Mr. Keiser replied, "Yes it was." Mr. Neubaum asked if this was sand that Mr. Keiser had used in
the construction of the accessory structure. Mr. Keiser answered, "Absolutely not." Mr. Neubaum asked
Ilh11111es 9100 NETZNINg Ne0111110IONA TISIMAN 8, 2008 8
Mr. Keiser if he was denying that it was his sand. Mr. Keiser testified that it was his sand, but it had
nothing to do with the construction of the accessory structure. Mr. Neubaum asked where the sand had
come from. Mr. Keiser responded to the question:
The sand was part of a play area that we had purchased soon after we moved to the property in 1988. It
was a wooden structure that had a sand box. In fact, you can see it in the aerial photographs, the exhibits
that I entered earlier. It's a white dot on both of those photographs. We purchased this wooden play
structure. It was a combination swing set, raised clubhouse, sand box underneath. We sold that particular
structure in...I'm going to guess ... early 2007. Somewhere in that time frame. Our children are grown to
the point where they did not use that. The purchaser of the swing set, the play area, did not want the
sand. The sand was left behind after the swing set was removed. I relocated the sand very close to our
shed and our adJoining property line. During the days of May e, 10", and 11 "', and please don't hold me
to that exact date because i believe that's the general time frame. If you allow me, i have the rain exhibits
with me. We received over three inches of rain in that time period. I agree that l should not have placed
that sand near the property line. That sand washed away in that rain event. i took a half a day off of work,
and when Mr. Wells came home I greeted him in his yawl, and very apologetically, apologized for my
stupidity. 1 removed as much of that sand from his property that I possibly could, and I believe Mr. Wells
would confirm that. But that's where the sand came from. It had nothing to do with the construction of our
accessory structure.
Mr. Neubaum referred to the drawing that Mr. Keiser had submitted, which Mr. Neubaum identified as A-
2. Mr. Keiser was asked if he had testified that this drawing was to scale. Mr. Keiser replied, "Yes sir." Mr.
Neubaum asked if by "to scale," Mr. Keiser meant everything depicted on there including the location of
the house, the trees, the shrubs, and everything. Mr. Keiser testfed that the tree trunks, which are
designated by a dot, are to scale, but that the canopies are not to scale. He added that everything else
would be located properly. Mr. Neubaum referred to picture #1 that Mr. Keiser had identified. He asked if
the tree in the foreground would be the same tree on this exhibit if it was looked at to the right of the shed
along the setback line. Mr. Keiser replied, "Yes." Mr. Rundle asked Mr. Neubaum to clarify which photo he
was looking at. Mr. Neubaum stated that this was photo #1 from the first packet. Mr. Rundle asked Mr.
Neubaum if he was looking at Applicant's Exhibit A-6 with page 1 of that photo dated 4/23/08. Mr.
Neubaum stated, "Yes."
Mr. Neubaum referred to A-6, picture #2, which he said appeared to have been taken from a porch or
deck at the back of the house. He asked if this was part of the hatched area shown in the middle of A-2.
Mr. Keiser pointed out that there are three hatched areas. Mr. Neubaum asked which hatched area would
it be that is being depicted. Mr. Keiser testified that it would be the larger hatched area that protrudes the
farthest from the property.
Mr. Neubaum then referred to A-6, picture #4. He noted a tree trunk on the left-hand side of the photo. He
asked Mr. Keiser if this would be the tree trunk in the bottom left-hand portion of the property when
viewing A-2. Mr. Keiser answered, "Yes it is." He pointed out the brown area in the left center of the
photograph. He stated that this was the location of the sand box where the sand came from. Mr.
Neubaum then referred to A-6, picture #5. He asked Mr. Keiser if the tree trunk he had just referred to is a
little more prominently shown in the left-hand portion of that photograph. Mr. Keiser stated, "That's
correct."
At this point Mr. Neubaum produced a photo which he indicated had not been taken by Mr. Keiser. He
asked Mr. Keiser if he was familiar with what is depicted in this picture. Mr. Keiser replied that he was
familiar with what is in the photo. Mr. Rundle asked Mr. Neubaum if was going to be offering this photo as
an exhibit. Mr. Neubaum stated that he would if Mr. Keiser can authenticate it. Mr. Keiser pointed out that
he had answered "yes." Mr. Neubaum asked what is depicted in this photo. Mr. Keiser gave this
description of the photo:
This appears to be a picture taken of our rear yard from a vantage point somewhere in the back of the
Wells property at an elevation above my 6-foot fence. In the left center of the portion would be the
northern wall of our shed. The green area is our rear yard.
NIMMs of Me NET toft Noaft lark Teafty, JOY 8, 2008
9
Mr. Neubaum referred to an area in the middle of the photo. He asked what was depicted there. Mr.
Keiser tested that that is an area that has been on the property since 1988. He explained that it is an
area for occasional campfires and the roasting of marshmallows. Mr. Neubaum asked if it is correct that it
is a fire pit. Mr. Keiser answered, "Yes sir."
Mr. Neubaum gave Mr. Keiser a copy of A-2. He asked Mr. Keiser to draw a circle on the exhibit to
represent the fire pit and to mark it with the initials "FP." Mr. Keiser noted that it would not be to scale, but
would be his best guess. Mr. Neubaum asked Mr. Keiser how far the fire pit is from the property line. Mr.
Keiser stated that he would object to that question on the basis of relevance. Mr. Hare asked Mr.
Neubaum what the reason for the question was. Mr. Neubaum explained that the reason is to establish
from the photograph and from the location of the fire pit, available flat area of the rear yard in which a
shed can be easily placed outside of the setback. Mr. Weeks said he felt that this was relevant. Mr.
Rundle overruled Mr. Keiser's objection at this point. Mr. Rundle asked Mr. Keiser if the fire pit is what
had been drawn in a blue circle with an "X" on it. Mr. Keiser replied that this is his approximate location
without physically locating it on the plan with a scale. Mr. Rundle stated that he was going to write the
letters "FP" over that so that it corresponds with the testimony. Mr. Rundle asked Mr. Neubaum to
continue. Again, Mr. Neubaum asked Mr. Keiser how far the fire pit is from the Wells property. Mr. Keiser
said that he would use a scale to provide an answer. Mr. Keiser measured the drawing he had just put the
circle on. He stated that from where he placed it is approximately 38 feet.
Mr. Neubaum submitted the photograph as Wells' Exhibit #1. Mr. Neubaum asked Mr. Keiser if he had
testified that the dimensions of his shed are 12 feet by 16 feet. Mr. Keiser stated, "That's correct." Mr.
Neubaum asked if the shed is 10 and'/2 feet high. Mr. Keiser answered, "Correct." Mr. Neubaum referred
to A-6, picture #1. He asked Mr. Keiser if he knew the distance from the eave or top point of the roofline
down to where it becomes horizontal with the top of the rest of the bill. Mr. Keiser replied, "I do not know."
Mr. Neubaum had no further questions.
Mr. Rundle addressed Mr. Keiser. Mr. Rundle referred to the time in 2004 when Mr. Keiser was
contemplating the replacement of the existing shed, then located on his property. He asked Mr. Keiser if
he was aware at that time of the 10-foot rear yard setback requirements of the Zoning Ordinance. Mr.
Keiser replied to the question:
1 was not, and as I have previously testified, the exhibit that I had shown you there originally, the original
subdivision exhibit was also attached to our deed when we bought the property. That particular exhibit
showed no setback requirements along the rear or side property lines.
Mr. Rundle again referred to the time when replacement of the shed was being contemplated and when
Mr. Keiser had had a conversation with Mr. Hovis. Mr. Rundle noted that the substance of the
conversation had been somewhat summarized by Mr. Keiser in the letter which had been marked as A-7.
Mr. Rundle then noted that Mr. Keiser had made reference in the letter to the requirement for a Building
Permit. Mr. Keiser replied, "That's correct." Mr. Rundle asked Mr. Keiser if he had at that time made an
investigation of the requirement for a Zoning Permit. Mr. Keiser answered, "We did not. My specific
question to Mr. Hovis was what permits are required to do what we want to do'?" Mr. Rundle asked Mr.
Keiser if it was correct that his letter does not indicate that. Mr. Rundle noted that the letter indicates only
that no Building Permit was required. Mr. Keiser replied, "That's what he confirmed. Those are his words
yes sir."
Mr. Rundle then referred to the time when Mr. Keiser had purchased the home in 1988. He asked Mr.
Keiser if the earlier shed was located on the property at that time. Mr. Keiser testified that it was there in a
smaller scale and that it was basically there for the storage of firewood by the previous owner. He added
that he and his wife are the second owners of the property. Mr. Rundle said he believed Mr. Keiser had
indicated that in 1988 the shed was adjacent to the 6 -foot fence located to the rear of the property. Mr.
Keiser testified that in 1988 the 6-foot fence was not there. He stated that the shed was on the property
line and surrounded by forsythia bushes, as well as an apple tree, a pear tree, and a peach tree. He
added, "it was nestled all in that little grove area there on the property line! He further testified that he
constructed the fence in 1993 as part of a permit that had been received from the Township to build the
BIIMs of do NETIMdn Naar" BUMTeesday, JOY 8, 2008 10
deck and to do a room addition. Mr. Rundle asked Mr. Keiser if he had received a Building Permit to build
the addition to the home and the deck. Mr. Keiser responded to the question:
When we purchased the property in 1988 there was no deck on it. There was a concrete patio with a
sliding door exiting out of the basement. On that concrete pad was a structure with a screened-in porch.
In 1993 we removed that screened-in porch. We enclosed it and turned it into a sunroom, built the deck
and put up the fence. We all the time in 1988 had split-rail fences along our northern property line and
along our eastern property line. A portion of those fences was removed in 1993.
Mr. Rundle pointed out to Mr. Keiser that he had mentioned obtaining a permit in 1993. Mr. Keiser replied,
"Yes we did." Mr. Rundle asked what permit had been obtained in 1993. Mr. Keiser tested that it was a
Building Permit for the construction of the sunroom, the deck, and the fence.
Mr. Rundle asked for any questions from board members. Mr. Weeks indicated that he wished to ask Mr.
Keiser a question related to his testified-to familiarity with zoning issues. Mr. Weeks asked, generally
speaking, if people who come in to engage in building a fence or a shed usually seek advice on zoning
requirements such as heights, structures, types, fire codes, things like that. Mr. Keiser replied, "Those are
routine questions that we receive all the time at my office." Mr. Weeks asked if this would have been
something he could expect Mr. Keiser to have done with Mr. Hovis. Mr. Keiser replied, "That was my
purpose of my call, yes sir." Mr. Weeks noted that Mr. Keiser's testimony in writing said he specifically
zeroed in on building. Mr. Weeks stated to Mr. Keiser, "l find it strange you didn't specifically testify as to
your awareness or lack of awareness about zoning requirements. With your background, I would expect
that, so help me understand that." Mr. Keiser responded to Mr. Weeks:
I'll help you understand that. In 2004 if was a very trying time for building code officials. This is the year
that the Uniform Construction Code was put into place across Pennsylvania. Each municipality by April 9*
of 2004, was required to decide if they were going to enforce the Uniform Construction Code with their
own personnel, they were going to hire consultants, or if they were going to defer to the Department of
Labor and Industry. In my particular case, Carlisle Borough, we did not have Zoning Permit requirements
until 2005, and the reason we didn't have them, we dealt with zoning issues based on the Building Permit.
I had no reason to believe that there was a Zoning Permit requirement in North Middleton. I certainly
wasn't familiar with it in my jurisdiction. We didn't have the Zoning Permit until we lost the Building Code
permit requirements. We had no other way to check setbacks. That's how we dealt with building code
requirements, so that's why I'm speaking about that in my testimony.
Mr. Weeks said to Mr. Keiser that he would like him to address his statement that there has been
inconsistent enforcement. Mr. Weeks asked Mr. Keiser to elaborate just a little bit more on what that
means and how it affects him. Again, Mr. Keiser responded to Mr. Weeks:
Well, just looking around our neighborhood. My wife and I take walks almost every evening. I don't care
which street you go down, there are numerous accessory structures all located so much closer to the
property line than ours; right on the property lines. When I entered the exhibit of the Zoning Permit for 2
Mountain View Drive, that's inconsistent enforcement. The rules are in place and they were not properly
enforced by Mr. Fegley. He issued that pennit in error. That's what I'm speaking to about inconsistent
enforcement.
Mr. Weeks asked Mr. Keiser if it was correct that his awareness of Section 204-131 of the North
Middleton Code came to him after the fact of building. Mr. Keiser asked Mr. Weeks to clarify which section
he was speaking to. Mr. Weeks referred to Section 204-131, General Requirements for Zoning Permits.
Mr. Keiser answered, "Yes, when I got my notice on April 15?h..." Mr. Weeks asked if this is when the light
bulb went off, so to speak. Mr. Keiser again indicated that this was correct. Mr. Keiser continued:
I even had a conversation with Mr. Wells because I called him that evening. I said when I discussed
building permits; I believe the Township made an error. They should have required a Zoning Permit.
There should have been no question about that. It was obvious to me then.
NNwbs of Me OThI1M a NOMW Bard, NOW@% Jail 8,2008 11
Mr. Weeks referred to the arbovida depicted in Mr. Keiser's photographs. He asked Mr. Keiser how old
those are. Mr. Keiser testified that those were planted in 2004. Mr. Weeks asked if they are roughly 8 feet
high. Mr. Keiser replied that some get up to over 10 feet, but that the average height of his is roughly 6'A
to 7 feet. Mr. Weeks asked Mr. Keiser if his shed is on a footer foundation. Mr. Keiser testified that it is
constructed from the concrete block that he had removed from the previous stricture and that there are
three layers of concrete block that support that structure. Mr. Weeks asked if it was correct that there is
no poured footer. Mr. Keiser answered, "No sir." He stated that he poured some of the end blocks full of
concrete and anchored the shed to those supports.
Mr. Weeks referred to the slope that Mr. Keiser had testified was part of the original subdivision. He noted
that the hard to read lines are about 2 feet off of each other. Mr. Keiser explained that they are 2-foot
contours. Mr. Weeks said to Mr. Keiser that it looked like at most he had bought a lot with a 16-foot slope.
Mr. Keiser testified that the elevation at Circle Road is 444 feet above sea level and at the adjoining
property line it is 432 feet. He stated that the drop across the property is 12 feet. He added that there is a
drop of 8 feet from the front of the home to the back of the home. Mr. Keiser further testified that his home
has a daylight basement that can be walked out of. He noted that from that point to the property line with
the Wells' there is an additional 4 feet of drop.
Mr. Weeks referred A-6, photograph #1. He asked if this does show or does not show a 4-foot grade
drop. Mr. Keiser responded that that is only half of the view of his back yard. He noted that the slope of
the arbovida can be seen going up and it can also be seen that the front of the shed is dug in. He stated,
"That is not level ground. That is uphill to our house; a difference of 4 feet of elevation from the fence
behind the shed to our door into our basement." Mr. Weeks then referred to the portion of land that was
addressed in Mr. Keiser's marking of the' 12' (fire pit) to the front of the shed. Mr. Weeks asked if this is a
4 -foot drop or a 2 -foot drop. Mr. Keiser testified that a swimming pool contractor had recently been at the
house to discuss the installation of an in-ground pool. He stated that the contractor had checked the
elevation from the little deck, which he said is the deck to the right in the photo. He testified that the drop
from the deck to the shed was approximately 24 inches. Mr. Weeks reserved the right to come back with
a question after more testimony is heard. Mr. Bennett had no questions.
Mr. Hare referred to the packet of information that had been submitted with the Application. He read the
following paragraph which was written by Mr. Keiser:
"Because of the unique physical circumstances, there is no possible way that our property can be
developed in strict conformity with the provisions of the North Middleton Township Zoning
Ordinance. As such, the authorization of a minimum variance of 8' on the northeast corner and 7'
on the southeast comer of our shed will enable the continued reasonable use of our property."
Mr. Hare asked Mr. Keiser if he was saying that if the Zoning Hearing Board would require him to move
the shed westerly toward the house, it could not be done. Mr. Keiser responded to Mr. Hare's question:
Physically it could be done, but that would certainly enter into our quality of our life and the use of our
back yard. We have roughly a 20 by 25-foot area of grass in that back yard. It's very small. Moving that
shed in the direction you suggested would put the shed in one third of a 20 by 25-foot back yard.
Mr. Rundle asked Mr. Keiser, "So it's really the choice of use that you want with respect to the location of
the shed?" Mr. Keiser said he wasn't sure he understood the question. Mr. Rundle continued:
The area closer to your home, sitting in front of your shed, more than 10 feet from the property line. It is
possible, as you just testified, to place the shed such that the rear wall would be on that 10-foot setback
line. Correct?
Mr. Keiser replied, "Yeah, physically you could do that, yes." Mr. Rundle asked, "You don't place it there,
or you didn't place it there because you wanted to have more yard space to utilize; fair statement?" Mr.
Keiser responded to Mr. Rundle's question:
Mon of the NMT hoW Neafte left Thy ftly 8,2808 12
That's a fair statement. There's a little more that's involved in that. When we originally located it we were
concerned about the visual impact to the Wells, and I made an extra effort to lower that foundation as low
as I possibly could, and the lowest point on our lot is at the property line. If you require us to move that
shed and we choose to comply with that, our shed will grow by that 24 inches we talked about earlier and
be more of a visual impact from the property line.
Mr. Rundle asked, "But would be in compliance with the Zoning Ordinance, correct?" Mr. Keiser
acknowledged that this was correct. He stated, "But it was a decision that we made jointly when we
originally talked with Mr. Wells." Mr. Rundle said that what he meant by "choice of use," and what he
believed Mr. Keiser now understood, was that Mr. Keiser wants to utilize the area in front of the shed as
his yard, as opposed to having it as a storage area with the shed located there. Mr. Keiser replied, "It's
the only place on our lot where we can get some privacy. We're on a comer lot. That's the only area we
have to be in our yard by ourselves. It's the only usable, enjoyable area of our lot, that's correct."
Mr. Bennett had a couple of questions at this point. He asked Mr. Keiser if it was correct that the original
shed was smaller. Mr. Keiser replied that the original shed was approximately 8 by 12 by 6 feet tall. Mr.
Bennett asked if there was a reason why the rebuilt shed had to be expanded. Mr. Keiser answered, "It's
full. It's full now."
Mr. Hare indicated that he wished to go in line with his previous question. He asked Mr. Keiser if the shed
were to be moved toward the house, would the door issue be worse because of the elevation issue
compared to where it is now. Mr. Keiser testified that the reason the door is an issue now is because of
his desire to keep the shed height as low as possible. He said that if he would move it up, the door could
be an issue if he tried to limit the height of the structure again. He added that if he were to put it up on that
elevation, the back of the shed would be sticking up about 24 inches out of the ground.
There were no further questions from the Board at this point. Mr. Hare reserved the right to come back.
Mr. Rundle asked Mr. Neubaum if he had any further questions of the witness.
Mr. Neubaum referred to Mr. Keiser's testimony that he began construction on the shed in 2004. Mr.
Keiser indicated that this was in the fall of 2004. Mr. Neubaum asked Mr. Keiser if he was aware at that
time that North Middleton Township did have a Zoning Ordinance. Mr. Keiser testified that he was. Mr.
Neubaum mentioned the prior structure that Mr. Keiser had referred to. He asked what the height was.
Mr. Keiser testified that it was a little less than 6-feet tall. Mr. Neubaum asked if it would have been as
high as the fence that is there now. Mr. Keiser stated that it was probably 6 inches lower than that fence.
Mr. Neubaum had no further questions.
Mr. Rundle noted that there was one member of the public sitting in the rear of the room. Mr. Rundle
asked him if he had any questions of the witness. The gentleman indicated that he had no questions. Mr.
Rundle asked Mr. Keiser if he wished to offer any other witnesses to testify. Mr. Keiser had no witnesses.
He rested at this time. Mr. Rundle asked Mr. Keiser if he moved for the admission of his exhibits A-1
through A-13. Mr. Keiser answered, "Yes sir." Mr. Rundle asked Mr. Neubaum if he had any objections to
the exhibits. Mr. Neubaum had no objections. Mr. Rundle stated that A-1 through A-13 were admitted.
Mr. Rundle suggested that a 5-minute break be taken at this time. The hearing went off the record at 8:28
p.m. The hearing resumed at 8:35 p.m.
Mr. Neubaum called Mr. Doug Wells. Mr. Wells was sworn in and identified himself as Doug Wells. Mr.
Neubaum asked Mr. Wells if he owns property at 131 Cumberland Drive in Carlisle. Mr. Wells answered
"Yes." Mr. Neubaum asked where this property is located. Mr. Wells testified that it is adjacent to the rear
of Mike and Kathy Keiser's property. He described it as a cul-de-sac property directly behind the yellow
highlighted block as denoted on Mr. Keiser's exhibit. Mr. Neubaum asked if this was Lot 74 on the exhibit.
This was noted to be correct. Mr. Neubaum then referred to A-2. He asked Mr. Wells to mark his property
on the exhibit. Mr. Wells complied by putting an "X" on his property. Mr. Neubaum asked Mr. Wells if it
UBMS of the UTZU Ng 19809 INK TINNY, JOY 8, 2008 13
was correct to say that he owns property that immediately adjoins the Keiser property on the east side of
the Keiser property where the shed is located. Mr. Wells replied, "That is correct." Mr. Neubaum asked
Mr. Wells if when Mr. Keiser was talking about the Wells' property, is that his (Mr. Wells') property. Mr.
Wells answered, "It is."
Mr. Neubaum asked Mr. Wells to tell the Board what he knows about Mr. Keiser's shed being erected in
2004 and 2005. Mr. Wells testified that it was his recollection that the previous structure that was there
behind the shed was taken apart in the fall of 2004, and in 2005 the shed that is there currently was
erected. Mr. Neubaum asked Mr. Wells what, if any, conversation he had at that time with Mr. Keiser
about the placement of the shed. Mr. Wells tested that there was no discussion with regard to the
placement of the shed or any reference to Zoning or Building Permits having been requested. Mr.
Neubaum asked Mr. Wells if he at any point had any conversations with Mr. Keiser about the shed. Mr.
Wells replied, "No." Mr. Neubaum asked Mr. Wells if it was his testimony that he has never spoken with
Mr. Keiser and that Mr. Keiser has never spoken with him about this shed from the fall of 2004 to date.
Mr. Wells responded to the question:
There was no discussion with regard to him building the shed, the design of the shed. During the time at
which Mike was building the shed, and in fact was putting the roof trusses on the shed, on top of the shed
structure, he obviously was out overlooking our patio area and talking ...I don't remember the specific
discussion... but at that time that was the only dialogue that was specific to the shed after it had been
erected and he was in fact putting the roofing trusses on.
Mr. Neubaum asked what the nature of that conversation was, if any. Mr. Wells testified that he didn't
recall. Mr. Neubaum asked Mr. Wells if he opposes Mr. Keiser's application for a Variance. Mr. Wells
stated, "I do." Mr. Neubaum asked Mr. Wells why he opposes Mr. Keiser's application for a Variance. Mr.
Wells gave the following comments:
The proximity of the rear of the shed to the dining room window and our deck is obviously ...it's a very
large structure, so when you look at the 6-foot fence, there is clearly a huge structure beyond that 6-foot
fence and when you're sitting in the property inside the house, you look out and you actually see this very
imposing, large shed that is on the property line from the rear of our property.
Mr. Neubaum asked Mr. Wells why he hadn't said anything to anybody about it before. Mr. Wells again
responded:
On April 18a', Mike, as he testified earlier, did leave a voice mail with me at my office. I was in
Washington, D. C. at the time and when I returned to the office at the end of the day, I returned the call to
Mike and when we had that discussion, my words to Mike was that, Mike, when you were putting the
shed up, I assumed you did your homework. And by that I meant that Building and/or Zoning
Permits ...and I'll admit I'm not an expert in this field so I've learned a lot in the last three or four
months ...but there was no consultation, on April 18"' when we were having the discussion is that we
assumed Mike had done his homework because of his position in the Borough, and as such when we
saw where the shed was being constructed immediately behind that fence when he was putting on his
roofing trusses... Denise and 1, neither one are meddling neighbors, so the point being is that the
homeowner is able to do what he or she chooses provided it fits into the requirements set forth by the
Zoning Board or the Township, so when he put the shed up, assuming that the homework was done and
the proper permits or Zoning Permits had been applied for through that process, that we were not going
to create a problem because it was just our opinion versus now knowing that in fact the zoning of the
setback ordinance. Had we known at that time, had a discussion occurred that we're putting the shed
behind the fence, and by the way, it needs to be set forward by 10 feet, that would have been a much
different discussion. We would not be having this discussion today, and as I explained to Mike on April
the18"', is that when the shed was erected and completed that Denise or 1, neither one, appreciated what
that shed looks like from our vantage point. Just as Mike was indicating that it would take away the
enjoyment of his own property, I would also say that it takes away the enjoyment of our property.
aw err 81tISE t Saril,'feeNOV,JIO8, 2808 14
Mr. Neubaum showed Mr. Wells a photograph. He asked Mr. Wells if he was familiar with what is
depicted in that photograph. Mr. Wells testified that he is. Mr. Neubaum asked Mr. Wells if he could
identify what is depicted in that scene. Mr. Wells testified that it is the inside view of their privacy fence
standing on the patio, looking over Mr. Keiser's back yard, beginning with his privacy fence, his shed, rear
yard and bum pit, and then the back of his house. Mr. Neubaum asked Mr. Wells if this is what the shed
looks like from the patio behind his house. Mr. Wells answered that it is. Mr. Neubaum pointed out that he
had marked the photo as Wells' Exhibit #2. Mr. Neubaum had no further questions.
Mr. Rundle asked Mr. Keiser if he wished to ask any questions of Mr. Wells. Mr. Keiser indicated that he
did. Mr. Keiser asked Mr. Wells what the date was that the photo being discussed was taken. Mr. Wells
stated that he did not know the date. Mr. Keiser referred to Mr. Wells' testimony that the photograph was
taken from his back yard. Mr. Wells acknowledged that this was correct. Mr. Keiser stated that the person
who took the photo appears to be "about 10 feet tall." Mr. Keiser asked Mr. Wells how this could possibly
be an accurate view from his back yard if the fences are 6 feet tall. Mr. Wells indicated that he wasn't sure
he understood the question. Mr. Keiser said he believed that the person who took the photo would have
had to be standing on something to get that vantage point or would have to have been a fairly tall person.
He asked Mr. Wells if he agreed. Mr. Wells stated that he did not take the photo, so he couldn't comment.
Mr. Wells again confirmed that he did not know the date of the photo.
Mr. Keiser stated that he wished to go back to A-6, photograph #9. He showed this photograph to Mr.
Wells. Mr. Keiser asked Mr. Wells if he would agree that that was a photo taken from an average height.
Mr. Keiser referred to testimony he had given that he had taken the photograph with a zoom lens from the
front of the Wells property on Cumberland Drive. Mr. Keiser asked Mr. Wells where his dining room
window is at. Mr. Wells stated that the dining room window would be immediately to the right of this
comer of the house being shown in the photo. Mr. Keiser asked Mr. Wells if he would agree that this view
is a better representation of the view of the shed from Mr. Wells' dining room window, than the view in the
photo presented by Mr. Neubaum. Mr. Wells answered, "No." Mr. Keiser asked why that is. Mr. Wells
testified that the view from the window is directly to the rear of the shed. Mr. Keiser asked Mr. Wells if
when he looks out his dining room window he is looking at those shrubs and the roof of the shed. Mr.
Wells stated that he is looking at the back of Mr. Keiser's shed and the roof. Mr. Keiser asked Mr. Wells if
he does agree that that is a representation of his shed from Mr. Wells' dining room window. Mr. Wells
stated, "From this angle I do not agree that it is a representation of the picture of the shed from my dining
room window because it's not a picture from my dining room window." Mr. Keiser asked Mr. Wells if he
would agree that if Mr. Wells' dining room window is right of the angle that the picture was taken, the view
would be slightly right of this position. Mr. Wells said he couldn't comment because he didn't know the
exact distance nor proximity of where this picture was taken to the view from his dining room window. Mr.
Keiser said he would try to clarify it. He pointed out the southern elevation of the Wells' house. He noted
that the dining room window is around the comer to the right. He asked Mr. Wells hove far the dining room
window is from that comer of the house. Mr. Wells guessed that it was 4 feet or 3 feet.
Mr. Keiser again referred to the photo that had been presented by Mr. Neubaum within the last few
minutes. He asked if this photo was taken behind the darker 6 -foot tall fence in the photo, looking at the
northem wall of his shed. Mr. Wells stated that this was correct. He said that as a point of reference he
would add that there is a brick paver-stone patio, so there is an elevation upon coming into the back of
that fenced area. He added that it is not at the same elevation as the yard would be and is a few inches
higher than the yard itself. Mr. Keiser asked Mr. Wells if it was still his testimony that he feels that the
previous exhibit that was entered is a more accurate view of his shed from the Wells' dining room window
than photo #9. Mr. Wells testified that Wells' Exhibit #2 is a more accurate reflection of the view from their
dining room window. Mr. Wells spoke at this point:
Again I think to note that this particular angle, as you can see, there are more shrubs on the opposite side
of the shed which don't block the view if you are looking at it from the dining room window. So, the shrubs
to the center left of this photograph, they get smaller, shorter as you go to the other end of the shed.
Mr. Keiser spoke:
N Ntb NMThm" Nest w S$"Te "V, Jlo 8, 2888 15
So if / understand your testmony now Douglas, you just indicated it's about four feet from the corner of
your property to the edge of your dining room window, and when you look out that window, that's a
clearer view of the northem part of our shed, and your photograph was taken in your back yard. Is that
your testimony?
Mr. Wells responded, "I would say that neither represent the view I get from my back window." Mr. Keiser
again referred to A-6, photograph #9 and noted some shrubs planted behind his shed. He asked Mr.
Wells if those are his shrubs. Mr. Wells testified that they are. Mr. Keiser asked when those shrubs were
planted. Mr. Wells responded that they were planted after the shed was constructed. Mr. Keiser asked
Mr. Wells, "Based on our discussions previously, you planted those to enhance your vantage... your view.
Is that correct? Is that a fair statement?" Mr. Wells answered, "In other words, to hide the shed." Mr.
Keiser asked, "So, to enhance your view, from your perspective." Mr. Wells replied, "No, to hide the shed.
Those are my words."
Mr. Keiser referred to Mr. Wells' testimony that Mr. Keiser had called Mr. Wells at his office on April 18th.
Mr. Wells acknowledged that this was correct. Mr. Keiser noted that there had been a general discussion
about the shed. Mr. Keiser asked Mr. Wells if it was his testimony that "we had no previous conversations
concerning the shed." He asked if this was correct. Mr. Wells replied, "Other than the point of reference I
made when you were putting those trusses on top of the shed structure." Mr. Keiser risked what had been
discussed at that time. Mr. Wells stated that he did not recall, He said he did recall that on April the 18th
he had made the point to Mr. Keiser that there had been no consulting with regard to the placement of the
shed, the design of the shed, prior to that shed being built. Mr. Keiser asked Mr. Wells if he recalled
discussion about the choosing of the color for the shed. Mr. Wells said he recalled Mr. Keiser talking
about choosing a color that would tie in to the surrounding areas.
Mr. Keiser referred to Mr. Wells' testimony that he owns the property with Mrs. Wells. Mr. Wells
acknowledged that that was correct. Mr. Keiser asked Mr. Wells if he resides at the property. Mr. Wells
stated that he is a property owner and that he resided at the property at the time of the shed's
construction. Mr. Keiser indicated that he had no further questions for the witness. Mr. Rundle asked Mr.
Neubaum if he had any redirect. Mr. Neubaum had no redirect.
Mr. Rundle asked Mr. Wells how long he has owned this property. Mr. Wells testified that he moved in in
October of 2000, and that he and Mrs. Wells are the second owners of the property. Mr. Weeks asked Mr.
Wells what year the April 18th meeting took place in. Mr. Wells testified that it was this year. Mr. Rundle
asked Mr. Wells if the prior shed was visible from the back of his house, standing by the dining room
window. Mr. Wells answered, "No sir."
Mr. Rundle asked for any questions from board members. Mr. Hare asked Mr. Wells if he lives in the
house today. Mr. Wells testified that he does not. He testified that his wife does live in the house. Mr.
Hare mentioned the back of the house and asked if there is a step up into the house from the patio when
going into the house. Mr. Wells testified that there is no step and that there is a downward slope to the
back door and that there are no steps into the house. Mr. Wells said he wished to clarify that from the
immediate back door off of the patio there is a storm door that leads into a Florida room and that there is
a step up of 2 or 3 inches from the Florida room into the house. Mr. Hare then referred to the photograph
that has been marked as Wells' Exhibit #2. He asked who took the picture. Mr. Wells testified that Denise
took the picture. Mr. Hare had nothing further.
Mr. Bennett asked Mr. Wells if he would have ever planted those shrubs if the shed had not been built.
Mr. Wells answered, "No." Mr. Bennett had no other questions.
Mr. Weeks asked Mr. Wells if Mr. Keiser's fence between the two properties was built in 1993. Mr. Wells
testified that he didn't know when the original fence was put up and that it was there when he moved in.
Mr. Weeks asked Mr. Wells if it was his testimony that at that time he could not see an existing small
shedtwood shed, but he did see the erection of the 10.5-foot high, 12 by 16 brown shed that is seen in the
exhibits. Mr. Wells indicated that that was correct. Mr. Weeks asked Mr. Wells if he had complained to Mr.
Keiser at that time. Mr. Wells stated that he had not. Mr. Weeks asked Mr. Wells if he, at the time of the
INI¦1112s JINN NOT ZINN N8ul1111g UKTIOSUI,Job 8, 2008 16
r M
construction, was bothered by water runoff. Mr. Wells said he believed that the shed is a compounding
problem. He noted that he has had problems with water runoff in that area of the yard prior. Mr. Weeks
pointed out to Mr. Wells that testimony had been heard earlier about the downward slope of the land and
that the Wells property is downhill from the Keiser property. Mr. Wells acknowledged that this was correct.
Mr. Weeks asked Mr. Wells if water normally flows into his swale. Mr. Wells responded to Mr. Weeks:
In that immediate area on that side of the yard, I would tell you from ...there is a grassy area immediately
behind this fence that runs along the back of my property, the back of our property to Mr. Stinson's
property, which is neighbor of Mike. There is a 5, 6-foot stretch of grass that I would mow. There were
times in the spring, immediately following the heavy rains, that it would be too wet to mow that piece of
the yard. On the opposite side of that where the shed is built, and 1 apologize, I don't know the exhibit, but
this is the picture of the area that I'm referring to. This stretch of grass is mowed every year. There are
sometimes during a heavy rain that it will take a day or two or three to dry out before I can get a tractor or
a mower so it doesn't mar down in the soft, but in this area....
At this point Mr. Weeks asked for the first photo that was held up to be identified. Mr. Rundle asked if this
was A-11, photo V. Mr. Wells acknowledged that that was correct. Mr. Wells continued. He referred to A-
11, photo #5. He pointed out the fence immediately behind Mr. Keiser's shed. He stated that the slope in
that area, immediately under the fence has gotten larger since the shed was put in. He said that mulch
has been put in. He also pointed out where the sand had washed onto the property from Mr. Keiser's
property. Mr. Wells stated, "The erosion, as you can see under that fence line, has in fact gotten worse
since that shed was put up." Mr. Wells added that when the patio was put in place, that slope was not
there. Mr. Weeks asked Mr. Wells if this shed would still be visible if it were to be moved 8 feet further
away from the property line. Mr. Wells answered, "it would be, yes." Mr. Weeks asked if this would
alleviate any problems. Mr. Wells responded:
There are two conditions. One is with the water, although it's a secondary problem, that would, I think,
improve the erosion in that area of the property. The second area is being that because of its placement
today, in the event we should decide to sell the property in the future, there may be a problem in the fact
that that shed is built-in and because we are unable to enjoy the property, one would assume that any
future potential homeowners would not be able to enjoy that property as well, with that shed being
immediately over the fence line, if that makes sense.
Mr. Weeks had nothing else. He reserved the right to recall Mr. Wells at another time. Mr. Rundle asked
Mr. Neubaum if he had any redirect. Mr. Neubaum had no redirect. Mr. Rundle asked Mr. Keiser if he had
any more questions. Mr. Keiser went back to A-11, photo #5. Mr. Keiser noted to Mr. Wells that he had
heard the earlier testimony from Mr. Keiser about the natural flow of water in this area. Mr. Keiser said
that if he understood Mr. Wells' testimony correctly, Mr. Wells had said that this area had eroded greater
since the construction of the shed. Mr. Wells responded, "Yes I would say that the lot line has eroded
greater as has the erosion underneath your fence line immediately across from our fence, where that
erosion has occurred." Mr. Keiser commented that this area needs to be mulched about every two years
and that he and Mr. Wells have joked about being on the same mulching schedule. Mr. Keiser asked Mr.
Wells if this area, as seen in the photograph, hasn't been mulched. Mr. Wells said he would say that it
has not been mulched recently. Mr. Keiser asked Mr. Wells if it is correct that when it is mulched, that gap
will narrow. Mr. Wells stated, "I fill that gap in with more mulch." Mr. Keiser asked Mr. Wells if he would
assume, if he had understood the earlier testimony, what will happen if that gap is filled in and water
wants to flow to the north, what is going to happen. Mr. Wells said that if mulch were in that area, it would
be washed away.
Mr. Keiser then asked to look at A-11, photo V. Mr. Keiser asked Mr. Wells if he had testified that this
area is property that he owns that would be west of his 6-foot privacy fence. Mr. Wells acknowledged that
that was correct. Mr. Keiser asked Mr. Wells if he recalled Mr. Keiser's testimony that Mr. Wells' fence line
was in the center of the swale area he described which transfers runoff to the north. Mr. Wells stated that
he did recall. Mr. Keiser said that Mr. Wells had testified that this area has been "historically wet." Mr.
Wells replied, "Behind the fence line, correct." Mr. Keiser asked Mr. Wells if he recalled Mr. Keiser's
testimony about the exhibit from Mr. Whittock, which was the Erosion and Sedimentation Control Report
MIONU It On 1NMTI1 oW NUNN 189lyd T998ftV,JOIN a, 2008 17
that he had prepared as part of the subdivision plan. Mr. Wells replied that he remembered the discussion
about it, but had not seen it. Mr. Keiser noted that he had referred to that exhibit earlier and had testified
that the soil and ground conditions on the Wells' lot were subject to seasonal high water. Mr. Keiser
asked Mr. Wells if he remembered that. Mr. Wells answered, "I do." Mr. Keiser asked Mr. Wells if he
would agree that he has seasonal high water in this area. Mr. Wells replied, "1 do."
Mr. Keiser indicated that he had nothing further. Mr. Rundle asked Mr. Neubaum if he had anything
further. Mr. Neubaum had nothing else. Mr. Rundle asked if any member of the public had a question of
Mr. Wells. No member of the public came forward. Mr. Weeks had another question at this point. He
asked Mr. Wells if, from looking at that roofline, he was familiar with any gutter or runoff control on that
shed. Mr. Wells stated that he did not recall any gutter systems on the shed.
Mr. Rundle asked Mr. Neubaum if he wished to present any other testimony. Mr. Neubaum called Denise
Wells. The witness was sworn in. She identified herself as Denise Wells, of 131 Cumberland Drive. She
testified that she is an owner of the property and that she lives at the residence. She testified that she
opposes the Application for the Variance. Mr. Neubaum referred to the photograph identified as Wells' #2.
He asked Mrs. Wells if she took the photograph. Mrs. Wells answered, "Yes." Mr. Neubaum asked Mrs.
Wells where she was when she took that photograph. Mrs. Wells testified that she was on the paver patio
right behind their privacy fence. Mr. Neubaum asked Mrs. Wells if she was standing on anything when
she took that photograph. Mrs. Wells answered, "No." Mr. Neubaum asked Mrs. Wells if she had the
camera at eye level. Mrs. Wells testified that she was "probably actually was holding it up and taking a
picture." Mr. Rundle asked how high she was holding up. Mrs. Wells testified that she was probably
holding up to her forehead. Mr. Rundle asked Mrs. Wells how tall she is. Mrs. Wells replied that she is
5'8".
Mr. Rundle asked Mr. Keiser if he had any questions. Mr. Keiser asked, "Mrs. Wells, if I told you that I
witnessed you taking that photograph, can you dispute that?" Mrs. Wells replied, "No." Mr. Keiser asked,
"if I told you that I saw you standing on your bench that's on your brick patio taking that photograph, can
you dispute that?" Again, Mrs. Wells answered, "No." Mr. Keiser asked Mrs. Wells if it was still her
testimony that she wasn't standing on anything. Mrs. Wells replied, "Yeah, I wasn't standing on anything."
Mr. Keiser asked Mrs. Wells if she had testified that she is roughly 68". Mrs. Wells acknowledged that
that was correct. Mr. Keiser asked Mrs. Wells if she had testified that the camera was at forehead level.
Mrs. Wells stated that she had said that the camera was up above forehead level, so that the lower edge
of the camera was right above her head. She testified that she was taking the photo at the vantage point
of what is seen upon coming out of their three-season room and stepping onto the patio. Mr. Keiser again
mentioned Mrs. Keiser's testimony about how the photograph was taken. Mr. Keiser asked Mrs. Wells to
explain how that photograph can be taken from what appears to be 3 feet above the top of Mrs. Wells' 6-
foot tall fence. Mrs. Wells stated, "I was holding it up, you know." Mr. Keiser had no further questions. The
Board had no questions. Mr. Rundle asked Mrs. Wells if she could recall the date the photo was taken.
Mrs. Wells stated that it may have been within the last three weeks and in the month of June.
Mr. Rundle asked if any member of the public had a question of this witness. No member of the public
came forward. Mr. Rundle asked Mr. Neubaum if he had any further testimony. Mr. Neubaum had none.
Mr. Rundle asked Mr. Neubaum if he would move for the admission of Wells' Exhibits #1 and #2. Mr.
Neubaum moved for the admission of the exhibits, and he rested at this time. Mr. Weeks stated that the
exhibits are admitted. Mr. Rundle asked Mr. Neubaum had any rebuttal testimony he wished to give
before Mr. Lao testifies. Mr. Neubaum had none.
Mr. Rundle called Mr. Lao. The witness was sworn in and identified himself as Ruben Lao, and testified
that his position is the Assistant Codes and Zoning Officer for North Middleton Township. Mr. Rundle
asked Mr. Lao if he had been instructed to relay to the Board any position taken by the Township on this
application. Mr. Lao provided the following:
The Board of Supervisors, in a vote of 3-2, voted in favor of the zoning approval, based on the fact that an
appropriate gutter system be put in to divert the water away from Mr. and Mrs. Wells' property.
Muss slue NET Zse0N ROOM e88'II,T188ft,JOY 8, 2008 18
Mr. Rundle asked Mr. Keiser if he had any questions of Mr. Lao. Mr. Keiser referred to the vote of 3-2 in
favor of the Application. He asked if it was correct that the two members who did not vote took no position
concerning the Application and felt that it was best left to the Zoning Hearing Board. Mr. Lao testified that
he had no knowledge of that. He said, "What I stated is what I was told." Mr. Kaiser had no further
questions. Mr. Neubaum had no questions. Mr. Rundle asked for any questions from the Board. Mr. Hare
asked Mr. Lao if the gutter system the Board of Supervisors had referred to was the gutter system on the
shed. Mr. Lao answered, "Correct." Mr. Hare had no further questions. Mr. Bennett had a zoning
question. He described a situation where a shed that's smaller and is non-conforming to the setbacks, is
then rebuilt wider. He asked Mr. Lao if there is anything in the Zoning Ordinance that would require a
foundation to that extension, such as a requirement to go below frost depth. Mr. Lao stated that there is
nothing to deal with frost lines at the time of obtaining the Zoning Permit.
Mr. Weeks had some questions. He noted that Mr. Hovis and been here prior to Mr. Lao and that this
provides a frame of reference as to the dates that are being discussed. Mr. Weeks noted that a Building
Permit was not required at the time. He asked Mr. Lao if a Zoning Permit was required at the time. Mr.
Lao replied, "Yes it was." Mr. Weeks asked if this was documented in the Zoning Code. Mr. Lao
answered, "Yes it was." Mr. Weeks asked if there have been amendments to that Zoning Code that would
affect this applicant in terms of whether it was 6 feet, 8 feet, 10 feet from a rear yard setback. Mr. Lao
stated that at the time the shed was installed there was a Zoning Permit required and that the setbacks
were 10 feet from the rear and side yards. Mr. Weeks referred to testimony given by the Keisers that
there are multiple non-conforming appearing sheds that imply inconsistent enforcement of the zoning. Mr.
Weeks asked Lao if he could address this issue. Mr. Lao said he could address this issue to the best of
his knowledge:
Inconsistent, not during my time with this department. I have enforced this ordinance over and over and
over again, much of it. The individuals don't like having to conform, but they do and I've been here only a
short period of time, I say less than a year and a half. I don't have cameras on everybody's house, on
everybody's yard to know every violation that exists and for me to be everywhere at one time to get
everybody into compliance is pretty unrealistic, but there is...the only mason why we addressed it with
Mr. Keiser in this particular case was there was a complaint filed, so this is not selective enforcement
where the Township was going after Mr. Keiser for any particular reason other than a complaint was fi/ed.
Mr. Weeks asked Mr. Lao if he has seen the Keiser property. Mr. Lao testified that he has. Mr. Weeks
asked Mr. Lao if he had heard the testimony tonight as to the topography. Mr. Lao answered, "Yes sir, I
have." Mr. Weeks noted that the original topographic map that was presented appears to have been
graded, so that it is not necessarily as originally prior to subdivision. Mr. Weeks asked Mr. Lao if this is a
fair statement and he asked Mr. Lao if he could address what he sees as the grade on the two lots that
have been identified. Mr. Lao responded that he wouldn't be able to tell Mr. Weeks the exact grade and
wouldn't be able to answer that. Mr. Weeks asked Mr. Lao if he has been on the Keiser property. Mr. Lao
stated that he has been on the side of the Keiser property that faces Cumberland Drive but not on the
interior of the property. Mr. Weeks asked Mr. Lao if could only guess as to the slope of the land behind
the house so that if Mr. Keiser were to move the shed 8 feet closer off the line, would this be an extreme
hardship on the topographical issue only. Mr. Lao responded to Mr. Weeks:
As Mr. Keiser stated, it can be done. It can be done. Whether or not it's a hardship I suppose depends on
whether he wants it someplace else or whether they view it as more of an obstruction to view. It can be
done. Whether or not they want to do that is something else, but it is possible to move the shed. It's not a
permanent structure.
Mr. Weeks had one last question. He asked Mr. Lao if he is aware of any motion by the Supervisors to
change the setback ordinance in the future. Mr. Lao stated that the Supervisors are working on a
proposal to change the setback ordinances at some time in the future, but that they have not given any
dates as to when that is going to occur. Mr. Weeks asked if they have talked about any dimensions. Mr.
Lao stated that the Supervisors are talking about a 5 -foot setback instead of a 10-foot setback for side
and rear yards for accessory structures. Mr. Weeks had no other questions.
ONe= of 09 NOT DWI Neefte 18811`11, U=MV, Job 8, 2888 19
t }? Y
Mr. Rundle asked Mr. Keiser if he had any follow-up questions. Mr. Keiser asked Mr. Lao if he was aware
of a letter he had sent to Mr. Lao's supervisor, who Mr. Keiser identified as Township Manager Ealer,
concerning this proposed ordinance in the future and also concerning the inconsistencies from Mr.
Kaiser's point of view in the enforcement of these particular zoning ordinances. Mr. Lao said he did recall
Mr. Keiser sending a letter to that effect. Mr. Keiser said that specifically the letter encouraged the Board
of Supervisors to look at some way to mitigate this township-wide shed issue where sheds are located
closer to or on the property line. Mr. Lao stated to Mr. Keiser, "You did send a letter to that effect, that's
correct." Mr. Keiser had no other questions. Mr. Neubaum had no questions.
Mr. Rundle asked if any member of the public wished to offer testimony this evening. No member of the
public came forward. Mr. Rundle asked if any member of either party wished to offer any further testimony
before the record is closed. Mr. Keiser asked for a minute. The hearing went off the record for a few
moments. The hearing went back on the record, and Mr. Keiser stated that he had nothing else. Mr.
Neubaum had nothing else. Mr. Rundle suggested that the record be closed at this time. Chairman
Weeks closed the record on this matter at 9:18 p.m.
Mr. Keiser read a prepared closing summation. Mr. Neubaum also gave a closing argument.
For reference purposes, the following is a list of all exhibits presented:
Applicant's Exhibits:
• A-1: Subdivision Plan for Creekview Heights, Section "C"
• A-2: A plot plan of Lot 60 drawn by Mr. Keiser
• A-3: A 3-page packet of register receipts from Lowe's and Home Depot with dates from 2005
• A-4: A Microsoft Earth map taken in 2008, which is an aerial view of the Keiser property
• A-5: A Google Earth aerial mapping taken in 2003, which is an aerial view of the Keiser property
• A-6: A packet of 10 photos, depicted the existing shed from various angles
• A-7: A letter summarizing conversations with Mr. Hovis regarding construction of the shed
• A-8: A copy of a portion of the Universal Construction Code
• A-9: The Erosion and Sedimentation Soil Plan for the Creekview Heights subdivision
• A-10: An Erosion & Sedimentation Control Report for Section "C,° Creekview Heights
• A-11: A packet of 10 photographs depicting the stormwater swales
• A-12: A packet of 19 photographs depicting various other sheds in the neighborhood
• A-13: A Zoning Permit issued by Paul Fegley for 2 Mountain View Drive
Objector's Exhibits:
• Wells' Exhibit #1: A photograph of the Keiser property back yard taken from the Wells property
• Wells' Exhibit #2: A photograph from the Wells' patio overlooking the back of the Keiser property
EMM plO NMT IMIN NesaM 91MI%TIMMV, Jell B, 2008 20
L r+ ..
At 9:29 p.m. the Zoning Hearing Board went into executive session to consult with Solicitor Rundle. The
hearing stood in recess at this time.
Decision #08-05: Michael Keiser, Variance Reauest
The hearing came back in session at 9:49 p.m. Chairman Weeks asked for a motion on the Application
that had been discussed tonight from Michael T. and Kathy H. Keiser.
Jim Bennett moved to deny the Variance. Henry Weeks seconded the motion for discussion. Mr.
Weeks asked for any discussion on the motion. None was offered. Mr. Weeks caned for the vote.
The vote was unanimous in favor of the motion for denial.
Mr. Keiser thanked the Zoning Hearing Board for their time. Solicitor Rundle explained to Mr. Keiser that
a written decision would be forwarded to him within 30 days. He also explained to Mr. Keiser that he has
30 days in which to file an appeal of this decision with the Court of Common Pleas.
Minutes from Tuesday, June 10, 2008
No additions, changes, or corrections were requested for the minutes from the Tuesday, June 10, 2008
Zoning Hearing Board meeting.
Jim Bennett moved to approve the June 90, 2008 minutes as presented. Henry Weeks seconded.
All votes were in favor and the minutes were approved as written.
Adjournment
Mr. Weeks asked for anything else for the good of the order. Nothing was offered. With no further
business before the Zoning Hearing Board at this time, the meeting adjourned at 9:54 p.m.
Submitted,
44-1-
Hare
North Middleton Township
Zoning Hearing Board
Michael S. Medvid
Recording Secretary
M11111108 of tla NMT ZORW 19" 1 Ills" Why, MY 8, 2008 21
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ATTACHMENT #1
NORTH MIDDLETON TOWNSHIP SUPERVISORS
CUMBERLAND COUNTY
2051 SPRING ROAD
CARLISLE, PA 17013
RECORD OF ATTENDANCE
MEETING 43
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
MICHAEL T. KEISER AND
KATHY H. KEISER,
Appellants
NO. 08-04797 CIVIL TERM
V.
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD,
Appellee
LAND USE APPEAL
PETITION TO INTERVENE IN LAND USE APPEAL
AND NOW, this 0 -day of August 2008, comes the Petitioners, Douglas Wells
and Denies J. Wells, by and through their counsel, Victor A. Neubaum, Esq., and hereby files this
Petition to Intervene in the above captioned matter as follows:
1. Appellants/Respondents are Michael T. Keiser and Kathy H. Keiser, 2220 Circle Road,
Carlisle, PA 17013.
2. Appellee/Respondent is the North Middleton Township Zoning Hearing Board, a municipal
zoning hearing board organized under the Municipal Planning Code, with offices at 2051
Spring Road, Carlisle, PA 17013.
3. Petitioners are Denise J. Wells and Douglas Wells, owners of property at 131 Cumberland
Drive, Carlisle, PA 17013. Denise J. Wells resides at 131 Cumberland Drive, Carlisle, PA
17013.
4. On or about June 17, 2008, Appellants filed an application for a variance from Section 204-
16.F(2)(c) of the North Middleton Township Zoning Ordinance to keep a shed located
within the 10 foot rear yard setback.
5. A hearing on the application was held July 8, 2008, after which hearing the Zoning Hearing
Board denied the requested variance. A written decision, with Findings of Fact, was issued
on or about July 21, 2008. Appellants filed a Land Use Appeal to the decision on August
11, 2008.
-1-
6. Petitioners are owners of land immediately adjacent to Appellants' property and the location
of the Appellants' shed is immediately along Petitioner property line. Petitioners appeared
at the zoning hearing on July 8, participated in the hearing as parties, and opposed the
Applicants' request for a variance.
7. Petitioners want to intervene in the above captioned zoning appeal. Petitioners are permitted
to Petition to Intervene pursuant to Pa.R.C.P. 2327(3) and (4) because
A. Petitioners are immediately adjacent landowners most impacted by the
Appellants' action to place the shed within the rear setback area on their property.
B. Petitioners were parties to the hearing before the Zoning Hearing Board and had
entered a timely appearance of record before the Board.
C. Petitioners are parties that own property that adjoins the proposed use and
Petitioners have a legally enforceable interest in the appeal.
8. Petitioners have not unduly delayed the proceedings, where it appeared at the Zoning
Hearing Board as objectors and have promptly filed this Petition to Intervene following the
Notice of Appeal.
9. Petitioners ask the court to allow it to intervene in the above captioned zoning appeal
pursuant to 53 R.S. §I 1004-A, of the Municipalities Planning Code, and Pa.R.C.P 2326,
et. seq.
10 By their signatures hereto, counsel for Appellants and for Appellee, pose no objection to
this Petition.
MALONE & NEUBAUM
By:
Date: 2 • Olr
lvl,?-4-,l L
Victor A. Neubaum, Esq.
42 South Duke Street
York, PA 17401
(717) 843-8001
S.I.D. #29159
Attorney for Petitioners, Douglas Wells
and Denise J. Wells
-2-
VERIFICATION
I verify that the foregoing PETITION TO INTERVENE IN LAND USE APPEAL
is true and correct. I understand that false statements made herein are subject to the penalties for
18 Pa. C. S. Section 4904, relating to unworn falsification to authorities.
Date: ??2a?bY
T
Date: rllzo
Denise J. el
1 uglas Wells
-3-
08/26/2008 10:35 717-243-1850 MARTSON LAW OFFICES
RUCs-20-2008 14:35 From:MRLONE and NEUBar 717 8520587 To:17172431850
1
PAGE 02/02
Fase:5/6
IN THE COURT OF COMMON PLEAS OF (MM ERT,AND COUNTY, PENNSYLVANIA
MICHAEL T. KEISER AND
KATHY F. KFTSER,
Appeftnts
W.
NORM MEDDLITON TOWNSHIP
ZONING SEARING BOARD,
APPELLEE
NO. 08-04797 CIVIL TERM
i
= LAND USE APPEAL
The Petition to intervene filed by Douglas J. Wells and Denies A. Wells is
Seen an agree posed to;
Hubert 3iL Gilroy,
seen and agreed/opposed to.
' rW0[IICy 1Wr Appellants
Michel R. Rundle, Esq., Attorney for North
Middleton Zoning Hearing Board
.4-
AUG-26-08 TUE 03:40 PM CUMB CTY DRO
AU?•u2J, 10U8`° 1
f I .
IN TU&I COURT ov
MICHAEL T. KFASRR?
AppellAnts
V,
NORTH MIDDIXTON T4
7,(!N1C,,NG 1 FAIRING HUA
MIPE E
Tito Bedtiao b)
se,*rs and aem
FAX NO, 7172407777 P. 02
,. ..?w. No 0914 P. 6?,....,
PLUAS OF CUIV MLAND COUNTY, PENNSYLVANIA
NO.08-0479" CIVIL TERM
LAND USE APPEAL
fxkd by Douglas J. Wells and Denies A, Wells is
to:
Hubert X. Gilroy, Esq., Attorney for Appellants
S"")11 and
to;
Michael R. Rundle, Esq., Attorney for Noah
Middleton UP,* }{wring Bard
4.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL T. ]KEISER AND
KATHY H. KEISER,
Appellants
V.
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD,
Appellee :
NO. 08-04797 CIVIL TERM
LAND USE APPEAL
CERTIFICATE OF SERVICE
I hereby certify that I have on this date served PETITION TO INTERVENE IN LAND USE
APPEAL on the persons and in the manner indicated below, which service satisfies the
requirements of Pa.R.C.P. 440.
SERVICE BY FIRST CLASS MAIL. POSTAGE PREPAID:
Hubert X. Gilroy, Esq., Marston Law Offices, 10 East High Street, Carlisle, PA 17013, Attorney for
Appellants/Respondents
Michael R. Rundle, Esq., North Middletown Township Building, 2051 Spring Road, Attorney for
North Middleton Township Zoning Hearing Board/Respondent
MALONE & NEUBAUM
Date:
By:V,--,.4-ALL'
PI, -
Victor A. Neubaum, Esq.
42 South Duke Street
York, PA 17401
(717) 843-8001
S.I.D. # 29159
Attorney for Petitioners
-4-
V / CI
4?
"?
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
MICHAEL T. KEISER AND NO. 08-04797
KATHY H. KEISER,
Appellants
V.
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD,
Appellee Land Use Appeal
QTR
AND NOW, this day of <e JD4 2008, upon consideration of
the Petition to Intervene filed by Douglas Wells and Denise J. Wells, it is hereby ordered that
Douglas Wells and Denise J. Wells shall be allowed to intervene in the above captioned case.
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NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD
CARLISLE, PENNSYLVANIA
IN RE :
VARIANCE REQUEST
APPLICATION #08-05
ORIGINAL
TRANSCRIPT OF PROCEEDINGS
BEFORE: HENRY WEEKS, Chairman
JIM BENNETT, Member
JAMES. E. HARE, Member
MICHAEL RUNDLE, Solicitor
DATE: July 8, 2008 at 7:08 p.m.
PLACE: North Middleton Township
Municipal Building
2051 Spring Road
Carlisle, Pennsylvania
Jennifer A. Chance,
Court Reporter-Notary Public
antralami`a
Reporting Services
63-3657 • 717-258-3657 • 717-258-0383f,=
c0urtrep0rtm4u@aoLcom
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P R O C E E D I N G S
MR. WEEKS: We're going to call this meeting of
the North Middleton Township Zoning Hearing Board to
order. Welcome, folks. The first order of business is
I'm going to ask everyone to rise and Ruben to lead us in
the Pledge of Allegiance.
(Pledge of Allegiance.)
MR. WEEKS: We're going to conduct the hearing
in accordance with our usual procedures. This is the
application of Michael Keiser, Number 08-05, a variance
request. Would you be willing to read it into the record,
Jim?
MR. BENNETT: Application 08-05, Michael T. and
Kathy H. Keiser of 2220 Circle Road, Carlisle, PA, parcel
number 29-16-1094-344. They want a rear property yard
line setback variance for a storage shed they completed in
2005 and presently have in place.
A setback variance is required for the shed to
remain where it is per North Middleton Township Zoning
Ordinance.
MR. WEEKS: I'm going to ask Ruben to tell us
whether or not the property was posted and was the hearing
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properly advertised?
MR. LAO: Yes, it was properly posted on the
property and it was also properly advertised in The
Sentinel.
MR. WEEKS: Thank you.
MR. LAO: And all the adjoining notices were
sent out in their proper time span also.
MR. WEEKS: I will turn this over to
Mr. Rundle.
THE SOLICITOR: Mr. Keiser, you are
representing yourself this evening?
MR. KEISER: That's correct.
THE SOLICITOR: Do I understand that there may
be a neighbor that wishes to offer opposition to the grant
of this variance?
MR. NEUBAUM: Yes.
THE SOLICITOR: Sir, you are?
MR. NEUBAUM: I am Victor Neubaum. I am an
attorney. My office address is 42 South Duke Street,
York, Pennsylvania.
THE SOLICITOR: Who is it you are representing?
MR. NEUBAUM: I represent Doug Wells and Denise
Wells to my immediate right. They are the owners of the
property at 131 New Cumberland Drive, which is the
immediately adjacent property most impacted by the
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location of the shed.
We are here in opposition to the application,
and we wish to participate in the case in opposition to
the application.
THE SOLICITOR: As much as you will be opposing
the variance, sir, if you and your client wish to come
forward and take the adjoining table, which I will call a
counsel table, you may do so.
Mr. Keiser, will you be offering the testimony
this evening?
MR. KEISER: Yes.
MR. WEEKS: Raise your right hand to be sworn,
please.
MICHAEL T. KEISER, being duly sworn, testified
as follows:
THE SOLICITOR: Mr. Keiser, what I'm going to
do is get some introductory information from you and allow
you to present your application. State your name for the
record, please.
MR. KEISER: It is Michael T. Keiser.
K-E-I-S-E-R.
THE SOLICITOR: And your current address is?
MR. KEISER: 2220 Circle Road, Carlisle, PA.
THE SOLICITOR: And it is that property upon
which you are requesting a variance; is that correct?
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MR. KEISER: That's correct.
THE SOLICITOR: Do you own that property
jointly with your wife?
MR. KEISER: Yes.
THE SOLICITOR: And her name is?
MR. KEISER: Kathleen H. Keiser. She is
sitting here with me to my right. (Indicating.)
THE SOLICITOR: How long have you owned your
property?
MR. KEISER: I was going to cover a lot of this
in my testimony, but I will answer your questions now. We
purchased the property in June of 1988. We have lived in
the home approximately 21 years.
THE SOLICITOR: And it is my understanding from
your application that prior to the shed that currently
exists, there had been an earlier accessory structure?
MR. KEISER: A very dilapidated earlier
structure made out of block and plywood.
THE SOLICITOR: Keep your voice up a little
bit.
MR. KEISER: It was a very dilapidated
structure that was made out of concrete block and plywood.
It was roughly eight feet wide by 12 feet in length. It
had an attached roof but open sided area that was for the
storage of firewood, and that was located on the eastern
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property line -- far eastern property line.
MR. WEEKS: Is your red light on on the
microphone?
MR. KEISER: Yes, it is.
MR. WEEKS: Thank you.
MR. HARE: Just move that a little bit closer
to you.
MR. KEISER: (Complying.)
THE SOLICITOR: Now, you have attached a number
of drawings with your application. Just for the
information of the board, what is your occupation, sir?
MR. KEISER: I am a civil engineer.
THE SOLICITOR: And currently you are employed
by?
MR. KEISER: Carlisle Borough.
THE SOLICITOR: Would it be a fair statement
that you are familiar with zoning hearings?
MR. KEISER: Yes, sir. In fact, I have
provided expert testimony previously before Zoning Hearing
Boards in the Commonwealth Court and Magistrate Court.
THE SOLICITOR: I will allow you to present
your application in free form, so to speak without having
all questions and answers since you are familiar with the
procedures. As we go along, we may have to stop to have
exhibits marked, things of that nature.
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MR. KEISER: I understand.
THE SOLICITOR: Proceed.
MR. KEISER: In addition to my employment
background, I have been employed in municipal government
for almost 30 years. 21 of those years was with Carlisle
Borough as their Assistant Director of Public Works and
their municipal engineer.
I am a resident professional engineer in the
state of Pennsylvania and the State of Montana. As I said
earlier, I've provided expert testimony in matters of
subdivision, land development, zoning and code issues, and
particularly for this particular case in storm water
management issues as an expert in the past.
And without objection, not only would I
consider myself a co-applicant this evening, I would also
like you to accept me as an expert witness in this field.
THE SOLICITOR: If expert testimony is required
at some point, we will have voir dire on it conducted by
Mr. Neubaum if he desires to take it. Let's stick to the
actual lay testimony concerning your application.
MR. KEISER: The only place where that might
come into play is with some of my exhibits.
As Mr. Bennett pointed out, we are here this
evening requesting a variance from the North Middleton
Township Zoning Ordinance, and specifically Section 204-16
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F (2-c) pertaining to a 10 foot required rear yard setback
for an existing structure accessory structure on our
property.
As I said earlier, we purchased the property in
1988. We own what is legally described as Lot 60, a
42-acre tract which is part of the Creekview Heights
subdivision, Section C, which was originally approved by
the North Middleton Township Board of Supervisors on
June 6, 1974.
This plan is recorded in the Cumberland County
Recorder of Deeds and Plan Book 25, page 49, and I would
like to enter that as an exhibit now if I could, please.
I have one here I can have marked if you would like.
THE SOLICITOR: Let's mark in 1 and utilize
that one.
MR. KEISER: Can I put it on the easel?
THE SOLICITOR: You may.
(Applicant's Exhibit No. Al was marked.)
MR. KEISER: What I just --
THE SOLICITOR: I have marked as Applicant's
Exhibit Al the subdivision plan for Creekview Heights,
Section C. You may proceed, and please keep your voice
up.
MR. KEISER: As part of my testimony, I pointed
out that we own Lot 60. It is highlighted in yellow on
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the map. This particular section was a 32-lot
subdivision, part of an original 135-lot subdivision that
was originally approved as a preliminary plan in 1971.
We own a corner lot at the intersection of
Circle Road and Cumberland Drive. Circle Road is a 50
foot right of way. Cumberland Drive is a 60 foot right of
way. Interesting to note on this particular plan the plan
was approved with front yard setbacks only, no rear or
side yard setbacks.
As I mentioned in my initial testimony, the
plan was approved by the Board of Supervisors on June 6,
1974. It was recorded in the Cumberland County Recorder
of Deeds Office on June 21, 1974, plan book 25, page 49.
The current zoning of our lot is R1, suburban
residential. Accessory structures are permitted by right
within the zoning designation.
Improvements on our current lot include a
single family detached dwelling, a 12 by 16 foot accessory
structure, a 15 foot by 14 foot wooden deck, a six foot
tall wooden privacy fence along portions of our northern
property line and our eastern property line, a split rail
fence along the remaining portions of our northern and
eastern property lines, and various species of material
landscaping.
I would now like to enter the plot plan exhibit
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as my next exhibit. I am assuming everyone has that in
their packets. I have some extra copies for counsel or
Mr. and Mrs. Wells.
THE SOLICITOR: Give me one to be marked.
MR. KEISER: (Handing documents.)
THE SOLICITOR: I am now marking as Applicant's
Exhibit A2 what appears to be a plot plan of Lot 60. You
may proceed.
(Applicant's Exhibit No. A2 was marked.)
MR. KEISER: I would like to spend a few
minutes describing what is drawn on here. North would be
to the right of the plan. This is a scale drawing of our
property and at a scale of one inch equals 30 feet. Note
that we are at the corner of Cumberland Drive and Circle
Road, 50 foot right of way, Circle Road 34 foot cart way.
Cumberland Drive is a 60 foot right of way with
a 40 foot paved cart way. You will see on the sketch plan
our 35 foot front yard setback requirements, our single
family detached home, our deck, the shed, which shows
encroachment into the rear yard set back at two feet from
the property line on the northeastern section of our shed,
and three foot at the southeastern section of the shed.
THE SOLICITOR: Would the encroachment actually
be eight feet and seven feet respectively?
MR. KEISER: You are correct, sir. You are
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correct. The plan also shows that we own approximately
176 feet along Circle Road, which is our western property
line, 143.4 feet along our northern property line, 103.14
feet along our eastern property line, which is the joint
ownership line with Mr. and Mrs. Wells, and 133.70 feet
along our southern property line.
THE SOLICITOR: Just for the record, with
respect to the Wells' property, where would that be
situated with respect to this drawing?
MR. KEISER: Along the 103.14 feet that is our
shared property line.
THE SOLICITOR: That would be the eastern
boundary?
MR. KEISER: Eastern boundary, that is correct.
Also noted on this plan are immature trees, the
10 foot required side yard and rear yard setback for the
zoning ordinance. Depicted by X is is our six foot tall
wooden privacy fence that shields a large portion of our
shed location. Those are indicated by the X's on the
plan.
Indicated by the dots or the O's is the
remaining split rail fence that we have on our property,
and that does follow our property lines along the northern
and eastern portions of the lot.
Down the center of the lot between the shed and
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our existing home you will see a series of dots with
bushes drawn around it. Those are the arborvitae
screening that we put in place that shields our shed plus
provides us some privacy for our deck area.
Coming out of the rear of our home you will see
the lines that are marked with a W and S. Those are our
water and sewer laterals that exits the home and go -- and
are connected to the public infrastructure in Cumberland
Drive.
Our accessory structure is a wood shed
measuring 12 feet by 16 feet times 10.5 feet high,
consisting of 192 square feet. I constructed the shed on
site starting in the fall of 2004, completing the
structure in June of 2005.
As we talked about earlier, the shed replaced
the smaller structure of approximately eight feet wide by
12 feet long by approximately six foot tall.
THE SOLICITOR: Would you tell us where that
shed was located?
MR. KEISER: I'm going to show you in an
exhibit here very shortly.
THE SOLICITOR: Thank you.
MR. KEISER: I demolished this structure in the
fall of 2004, and using the concrete block that was
partially constructed of I constructed the foundation for
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the new shed, which was finished in 2005.
The next exhibit I have is just our receipts
for the actual materials we used to construct the shed.
The purpose of these is not to demonstrate a financial
hardship, just to demonstrate the time period in which we
constructed the shed.
THE SOLICITOR: Okay. You handed me a packet
of three pages which appear to have register receipts from
Lowes and Home Depot. I will have that marked as
Applicant's Exhibit A3.
(Applicant's Exhibit No. A3 was marked.)
MR. KEISER: You will note that the material
receipts start in April of '05 and continue through May
and June of '05.
The next exhibit I want to enter -- this will
be A4 I am assuming?
THE SOLICITOR: I will have that marked as
Applicant's Exhibit A4.
(Applicant's Exhibit No. A4 was marked.)
MR. KEISER: This particular map is a Microsoft
earth map that was taken in 2008, and it is an aerial view
of our property. Depicted on the map you will see Circle
Road, Cumberland Drive, Mountain View Drive, with north to
the top of the map.
Circled in red, which now has turned somewhat
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yellow, is our existing shed structure. Also depicted in
red or yellow, depending upon your color perception, is
our approximate eastern and northern property line. You
will see that shed is located near our eastern property
line.
The next exhibit -- I believe this will be A5.
THE SOLICITOR: A5.
(Applicant's Exhibit No. A5 was marked.)
MR. KEISER: This is another aerial mapping,
and it was taken from photography available dated April 6,
2003 from Google Earth, and you will notice it is our lot
again depicted with the eastern and northern property
lines shown in the red line, and circled in that area was
our previous shed. Again, north would be to the top of
this exhibit.
THE SOLICITOR: With respect to that previous
shed, if I may interrupt for one second, it is my
understanding there are no dimensions listed or shown on
this aerial photo A5. Can you tell us how far from the
eastern property line the prior shed was located?
MR. KEISER: It was actually affixed to our --
a six-foot-tall wooden fence. The back of it shared a
wall with the fence.
THE SOLICITOR: Okay. Proceed.
MR. KEISER: The next set of exhibits, it was a
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complete set of documents. These are ten photographs
depicting our existing shed. There is one copy there for
each Zoning Hearing Board member. As I understand it,
they didn't originally get a photograph.
THE SOLICITOR: I will collectively mark this
packet of photographs as A6.
(Applicant's Exhibit No. A6 was marked.)
MR. KEISER: You will note on the
photographs -- and I'm going to speak to these by number.
In the upper right-hand corner they are listed one through
10.
The first photograph, depicted as number one,
is a picture of our shed looking in the southeasterly
direction, and it is a view from our backyard.
What I want to note in this particular
photograph is that the shed was lowered in the front. It
was actually dug into the ground to make the height as
small as possible. You will note that the back of the
shed near the fence is higher than the front.
Actually, when I constructed the shed, I had to
cut the door by eight inches just so I could open it due
to the slope of the ground. But the reason that we
originally constructed it this way was based on a
conversation I had with Mr. Wells that I -- when I built
the shed, I would keep the shed as low as possible so the
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majority of the shed would be shielded by our existing
six-foot-tall privacy fence.
The next photograph, Number 2, again is another
shot of the shed looking in a southeasterly direction, and
it is a view from sitting on our deck.
The next photograph, Number 3, is looking at
the shed in the northeasterly direction standing in
Cumberland Drive. Note the arborvitae shielding the
shed's view from the Cumberland Drive right of way. You
will also note our six-foot-tall privacy fence is in the
center of the photograph.
The Wells' six-foot privacy fence would be in
the right center of the photograph, and that is the Wells'
home in the right center of the photograph.
The next photograph, Number 4, again is another
picture of our shed looking north from Cumberland Drive
along our rear property line or our eastern property line.
Again, you will note the distance from the fence -- the
fence is on the property line, so you will note the
distance between the shed and the property line.
Photograph Number 5 is looking in a
northwesterly direction from Cumberland Drive. Again, the
split rail fence in this photograph is roughly our eastern
property line, the shed in the background.
The next photograph, Number 6, is looking west
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from Cumberland Drive. And I took this photograph soon
after I was notified by Mr. Lao that he was going to be
issuing us an enforcement notice, and I took the
photograph to give you an idea of the visibility of the
shed before the leaves really came in in full foliage and
see what would be typically visible during a winter month
or early spring.
The next photograph is the same view -- this is
Photograph Number 7, looking from Cumberland Drive after
the leaves fully came in two months later from the
previous photograph. You can now see that the shed,
except for the roof area, is fairly invisible.
The next photograph, Number 8, is looking west
from Cumberland Drive across the Wells' property, typical
view of what the shed looks like in that direction. The
Wells' home is in the right center of the picture. Our
home is above the shed and is the top left center behind
the Douglas fir.
Photograph Number 9 is looking west from
Cumberland Drive as a close-up view of the previous
photograph, the shed in the background, our six-foot-tall
privacy fence, and some landscaping that Mr. and
Mrs. Wells installed to help shield the view from their
vantage point.
The last photograph, Number 10, is a picture of
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the shed, the rear of the shed. The privacy fence is our
privacy fence. The shed is on the right side of the
photograph.
Prior to starting construction of our shed in
2004, I had originally contacted North Middleton Township
and I spoke to their then code officer Ryan Hobis
(phonetic). Mr. Hobis advised me that the Township had no
requirements for building permits that he was aware of.
He was aware that we were replacing an existing
structure. The Township at that time had recently adopted
the new statewide Pennsylvania building code, the Uniform
Construction Code, or the UCC as it is more commonly
referred to today.
The UCC code exempts, among many things,
residential accessory structures from the requirements of
building permits if they are one thousand square feet or
less in area.
Mr. Hobis also informed me that the structure
could not be located in our front yard. Because we own a
corner lot, we had two front yards. We were well aware of
that requirement.
We decided at the time that the shed would be
located in our rear yard next to our six foot tall wood
privacy fence in the same general location as the previous
structure.
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Mr. Hobis was familiar with our lot. He at the
time had been inspecting a new home that was being
constructed across Cumberland Drive from our residence.
The property's address is 2 Mountain View Drive.
That was the extent of our contact until we had
been recently contacted by Mr. Lao -- am I pronouncing
that right?
MR. LAO: Correct.
MR. KEISER: -- concerning our shed's
construction. The next exhibit that I have -- I am losing
track. I think we are at A6.
THE SOLICITOR: A7.
MR. KEISER: A7, this particular exhibit
documents my conversations with Mr. Hobis concerning the
building permit process, and it also thanks him for his
willingness to contact the Township and reiterate our
previous conversations.
I believe you all have copies of that in your
packet, so I'm not going to read you the letter.
MR. NEUBAUM: If I may, I object to A7 as self
serving and it is hearsay. He has testified as to what he
is testifying to.
THE SOLICITOR: It is, but it is clearly not a
hearsay document inasmuch as he is here to be testifying
to it. And inasmuch as the Zoning Board is not confined
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to strict rules of evidence, the objection should be
overruled.
MR. WEEKS: Let it go in.
THE SOLICITOR: The objection is overruled.
MR. KEISER: Thank you.
(Applicant's Exhibit No. A7 was marked.)
MR. KEISER: The next exhibit that I would like
to enter into the record is a copy of the Uniform
Construction Code, specifically Chapter 403 titled
Administration, and Chapter 403.1B, Exclusions and
Exemptions.
THE SOLICITOR: Let me stop you for a second
there. Before this is marked, this deals with building
code, correct?
MR. KEISER: I understand.
THE SOLICITOR: And the requirements for a
building permit?
MR. KEISER: That is correct.
THE SOLICITOR: There is no allegation to my
knowledge, correct me if I'm wrong, that you have been
cited for failure to have a building permit or that a
building permit is actually required for this particular
shed.
MR. KEISER: That is also correct, but --
THE SOLICITOR: What is the purpose of the
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exhibit?
MR. KEISER: The purpose of this exhibit is to
substantiate the previous exhibit and my conversation with
Mr. Hobis on what permits were required or were not
required.
THE SOLICITOR: I will have it marked as A8.
You may proceed.
(Applicant's Exhibit No. A8 was marked.)
MR. KEISER: The thing I want to call to your
attention again in this exhibit is Section 403.1B,
Exclusions and Exceptions -- Exemptions. Excuse me.
THE SOLICITOR: You don't have to read it. It
will speak for itself.
MR. KEISER: Thank you, sir.
We received an enforcement notice from Mr. Lao
dated April 15, 2008. This notice contained several
errors and was later rescinded. The April 15th notice
listed violations of side yard setback, accessory
structures as a permitted use, and a drainage issue.
A second enforcement notice was issued by
Mr. Lao dated June 3, 2008 citing only the zoning
ordinance requirement pertaining to rear yard setback.
Although the drainage issue has been resolved, I want to
spend some time this evening on it so there are no
questions as to how the drainage was originally perceived
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to work and how it works today in our neighborhood.
The next exhibit I have is a map that should be
in your packets. It is an erosion and sedimentation soil
plan. That's it, sir.
THE SOLICITOR: That plan will be marked as A9.
(Applicant's Exhibit No. A9 was marked.)
MR. KEISER: This particular exhibit I got from
the Township files on the original subdivision plan that
was filed and approved by the Board of Supervisors. And
what this exhibit designates -- again, our lot is shown in
yellow.
And what I want to point out that is very
interesting, the existing contours of our lot on Circle
Road is 444 feet, at our property line with the Wells is
432 feet. That is a drop in elevation of 12 feet across
our property.
Designated in blue on here are the drainage
patterns as envisioned at the time of the subdivision
approval.
THE SOLICITOR: Just for the record, when he
indicated designated in blue on the exhibit, for whatever
reason, the blue is orange.
MR. LAO: Correct.
THE SOLICITOR: You may proceed.
MR. KEISER: You will note Lot 74, which is the
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Wells' property. There is an existing storm sewer,
underground storm sewer, that starts at the intersection
of Susan Lane and Mountain View. That is found on this
map between Lots 75 and 76.
That underground storm drain system follows
Mountain View where it cuts between Lots 42 and 75 in an
easterly direction. It then heads north between Lots 40
and 41 where it meets up with Cumberland Drive.
There are two ailments in the roadway at that
location. The system then continues underground across
the Wells' property, Lot 74, into the cul-de-sac where
there is another inlet. It then heads north between Lots
72 and 73 until it hits Circle Road between Lots 65 and
66.
Again, there are two more inlets at that
location. The system then continues underground between
Lots 50 and 51, 21 and 151, 20 and 152, for an ultimate
discharge of the drainage to the Conococheague Creek.
MR. WEEKS: I'm going to ask you to repeat
that.
MR. KEISER: Where did I lose you?
MR. WEEKS: The last runoff.
MR. KEISER: (Indicating.)
MR. WEEKS: Okay. Thank you.
MR. KEISER: About there at Circle Road.
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MR. WEEKS: Yes.
MR. KEISER: Then you notice Lots 50 and 51 to
the north.
MR. WEEKS: Got it. Thank you.
MR. KEISER: The system continues on through
Lots 21 and 151, 21 and 152, where the storm water exits
to the Conocacheague Creek, the very top of the map.
Designated in your exhibit in orange are the
drainage patterns based on the existing contours the way
the ground is presently sloped. You will note that across
the Wells' lot, Lot 74 again, there is a drain swale that
starts on their southern property line, becomes very close
to our joint eastern property line, and continues down to
a point at Lot 65 and 66 where there is an inlet that
captures the runoff from the swale area.
Also starting on Lot 70 is a similar swale that
terminates at the same point. From here, the surface
water goes underground into the underground system that I
described previously.
The next exhibit ties with this previous
exhibit.
THE SOLICITOR: That will be A10.
(Applicant's Exhibit No. A10 was marked.)
MR. KEISER: This is another document that I
retrieved from the North Middleton Township subdivision
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file for when this plan was approved, and this is the
erosion and sedimentation control plan for Creekview
Heights, Section C, as prepared by a William B. Wittock,
Professional Engineer, from Camp Hill, Pennsylvania.
What I want to note on this particular exhibit,
and I'm going to refer back to the previous exhibit as
well, there are certain soil conditions identified in this
report and also identified on the map. Designated as a 49
over a B-2 are the soil conditions for the Wells'
property. Designated by a 25 over a C-2 are the soil
conditions for our particular lot.
What I want to note is on page 4, the soil
conditions for the Wells' property, and a particular
interest is -- I will read it into the record -- this
particular soil is found on slopes ranging from three to
10 percent. The slopes are moderately eroded.
The soil tends to be moderately deep and
moderately well to somewhat poorly drained. It was
underlined with shale to a depth of bedrock of five to
seven feet. And this is the key point: Building sites
may be subject to seasonal high water.
The next exhibit I have is another series of
ten photographs.
THE SOLICITOR: This is marked as Applicant's
Exhibit All.
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(Applicant's Exhibit No. All was marked.)
MR. KEISER: Again, there should be one there
for each member of the Zoning Hearing Board. These
photographs, again, are numbered in red in the upper
right-hand corner of each photograph.
The first photograph, Number One, again is
looking -- and I want you to be thinking about drainage in
these photographs. This particular photograph is looking
northwest from Cumberland Drive and designates the start
of the sloped drain swale across the Wells' property.
This swale collects surface run out from
adjoining property and transfers the run out to the north
to an underground 24-inch drainage pipe that I previously
described.
The next photograph, Number 2, is a view
looking northwest from Cumberland Drive. The drainage
swale is very gradual at this point and goes between the
white dogwood and the red crabapple bush and heads towards
the yellow bush where it goes underneath the Wells'
privacy fence, which is the darker six foot tall fence.
Ours is the lighter six foot tall fence.
The next photograph, Number 3, is looking
northeast from our backyard. And here you can get a
better idea of the swale area. The photograph is taken in
our backyard. Split rail fence is our property line. You
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can see the sloped area dropping off to a low point in
about the center of the photograph.
The next photograph, Number 4, is looking
northeast from our property. Note the swale area becomes
more defined as it goes underneath the Wells' wood privacy
fence. Note the opening underneath the fence roughly in
the arch of the red bush.
The next photograph, Number 5, is looking
northeast from Cumberland Drive. This is an enhanced view
of the previous photograph. You can see the depression
underneath the fence. The Wells' fence, again, is the
darker of the two fences.
Photograph Number 6 is even a more close-up
view of the swale area going underneath their fence.
Photograph Number 7, this is looking northeast
from our backyard. It is a view of the swale area and the
Wells' rear fence, which is located in the center of the
swale. Note the gaps underneath the fence.
If you look up in the upper left-hand corner of
the photograph, you will see the swale continuing to the
north as I described on two exhibits prior.
Photograph Number 8, in this particular
photograph I am standing in the backyard of Harvard Sport,
which is three property owners north of our location, and
I am looking southwest.
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MR. WEEKS: Would you say the lot number?
MR. KEISER: It will be Lot 63.
MR. WEEKS: Thank you.
MR. KEISER: I am standing roughly on the -- I
don't know if you have the same number -- about the fifth
arrow on your map.
This is a view looking southwest from the
center of the swale towards the Wells' fence on their
northern property line. The dark area in the center of
the photo is where the previous photo was taken from. You
can very easily depict the swale in this photograph.
Photograph Number 9 is the inlet box I
described previously located at Lots 64 and 65. That's
where the water, the surface water, enters the underground
storm drain system.
The original subdivision plan was laid out and
designed to incorporate this storm water flow. That storm
water flow goes in the same direction today.
Photograph Number 10 was taken from our
property during a heavy rain. The Wells' fence is on the
left. Our fence and shed are on the right.
On this particular day, I invited Ruben out to
the site as well to view the drainage, because the
original claim filed by Mrs. Wells was that runoff was
creating a problem for her fence because of our shed.
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After Reuben's investigation and after our
providing additional information, that claim was removed
from our enforcement notice.
On this day, we received almost an inch of
rain. When I took this photograph, you can actually see
the raindrops coming down. There is no runoff leaving our
site from this particular event.
I have two final exhibits that I would like to
show. The first one is a series of 19 photographs.
THE SOLICITOR: This is marked A12.
(Applicant's Exhibit No. A12 was marked.)
MR. KEISER: These particular photographs were
taken in our immediate neighborhood within ten minutes'
walking distance of our property. Again, they are each
numbered 1 through 19 in the upper right-hand corner of
the photographs.
The first two photographs are the house I
talked about earlier that was being constructed when our
shed was being constructed in 2005. This is a view of
2 Mountain View Drive directly across Cumberland Drive
from our property. This is also a corner lot.
Along with these photographs I have another
exhibit, these two particular photographs, that show a
zoning permit that was issued by North Middleton Township
Zoning Officer Mr. Fagley.
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THE SOLICITOR: All right. This is an exhibit
that will be marked A13.
(Applicant's Exhibit No. A13 was marked.)
MR. KEISER: This home was constructed in 2005,
and in 2006, Mr. Fagley issued a zoning permit for a six
foot tall fence. This property is a corner property. It
has a 35 foot front yard setback.
Your Zoning Ordinance, Section 6204-26, is
found on page 75 of your zoning book, if you have it with
you, allows no fence greater than three foot tall in the
front yard.
THE SOLICITOR: What is the relevance of this?
MR. KEISER: The relevance of this exhibit is
that we believe there has been inconsistent enforcement in
North Middleton Township concerning setback requirements
particular to accessory structures. This is just one
small example of that inconsistent enforcement in the
zoning ordinance.
THE SOLICITOR: Proceed.
MR. KEISER: Also in this photograph you will
see a new shed that was placed there without a permit.
That shed is also located in the front yard in violation
of the Zoning Department.
Photograph Number 2 is just another picture of
the same property.
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Photograph Number 3 is a picture of a shed
owned by our neighbors, Lisa and Eric Anderson,
2203 Circle Road. This shed is right on the rear and side
property line of their lot.
The next photograph, another neighbor of ours,
the Drumheisers (phonetic), 2202 Circle Road. Their shed
is located in the front and side yard right on the
property line.
The next photograph is a picture of a shed --
this is Number 5 -- at 2112 Circle Road. This particular
shed is located on the rear property line.
The next photograph, Number 6, this is a
property owned by Linda Hartok (phonetic), 100 Cumberland
Drive, roughly a half a block from our home. This shed is
located on the rear property line. She also has a corner
lot.
The next photograph, Number 7, 101 Susan Lane,
this property abuts the Hartok property. The front is on
Susan Lane. Their shed butts up to the back of
Ms. Hartok's shed, again, on the rear property line.
The next photograph is a picture of two sheds.
MR. WEEKS: Number?
MR. KEISER: 8. The white shed or the longer
shed is addressed at 103 Susan Lane. The green or blueish
shed is located at 104 Cumberland Drive. The
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104 Cumberland Drive shed or the blue and tan shed, is
located on the rear property line. The long white shed is
located both against the side and rear property line of
that lot.
The next photograph, Number 9, is a picture of
a shed right down the street from us also at
112 Cumberland Drive. This shed is in violation of the
side yard setback.
The side yard property line is depicted where
the telephone pole is. You can see a difference in mowing
there as well. I am standing right on the pin to the
front of this property taking this photograph.
The next photograph, Number 10, is a picture of
the shed around the corner from our house at 3 Strawberry
Lane, again, close to the side and rear property line.
Not against in this particular place, but certainly closer
than ten feet.
The next shed, Photograph Number 11, is a
neighboring property to the previous exhibit. This
property is addressed at 5 Strawberry Lane. This
particular shed is against the rear property line.
Moving down Strawberry Lane to Number 12,
Photograph Number 12, this is 7 Strawberry Lane. This
particular picture is a photograph of two sheds. You have
to look fairly close. There is two sheds of the same
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style.
The second shed just extends a little bit to
the left of the photograph. You can see the point coming
out. I am standing here again on the property line of
Strawberry Lane.
The first shed would be in violation of the
side yard setback. The second shed would be in violation
of the side yard and rear yard setback.
The next photograph, Number 13, is a picture of
a shed at 2225 Douglas Drive, one block to the west of our
property. The shed is owned by the Boyds. It is
constructed right on the side property line. The adjacent
property owner is Mr. Stenzer (phonetic).
The next photograph, Number 14, is down the
street from our property and shows two sheds, one at
2164 Douglas Drive and another shed at 2206 Douglas Drive.
The six foot tall privacy fence is the adjoining property
line between the two property lines. They both have sheds
against the property line.
The next photograph, Number 15, is taken at the
corner property addressed at 184 Star Avenue. It is a
corner lot. This particular shed is in violation of a
front and side yard setback.
Photograph Number 16 is another picture of a
shed addressed at 1950 Star Avenue in violation of the
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rear property line.
Photograph 17 is a picture of three sheds, one
located at 1931 Reservoir Drive, the second one at 1932
Sterrits Gap Avenue (phonetic) and 1930 Sterrits Gap
Avenue. 1931 and 1930 have sheds adjacent to the side
property line. 1932 has a shed adjacent to the rear and
side property line.
Photograph Number 18 -- I believe this is
getting into your neighborhood, Mr. Bennett --
1899 Douglas Avenue.
MR. BENNETT: That is close.
MR. KEISER: This is a corner lot with a shed
that is adjacent to the rear property line. And the final
photograph, Number 19, is a picture of a shed at 107 Pearl
Drive, which is against the side property line and the
rear property line.
That would conclude my initial testimony. I do
have a summation with which I will address the hardships
of our case based on the Municipalities Planning Code.
Are there any questions of myself?
THE SOLICITOR: Mr. Neubaum, you may
cross-examine.
EXAMINATION
BY MR. NEUBAUM:
Q. Mr. Keiser, do you know when zoning was adopted
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in North Middleton Township?
A. I was told by Mr. Fagley it was 1978.
Q. So do you know whether these sheds that you
were pointing out in the neighborhood existed before 1978
or after 1978?
A. The only one I am certain of is based on the
zoning permit that I gave you depicting the Photographs
Number 1 and Number 2.
Q. Did you take any dimensions of these actual
buildings?
A. Dimensions of the accessory structures?
Q. Yes.
A. No, sir. I would have had to trespass to do
that.
MR. NEUBAUM: May I approach?
THE SOLICITOR: Yes.
BY MR. NEUBAUM:
Q. Just as an example, here, look at what you call
Picture Number 5, as an example of a shed. Would you say
that the size of those doors are larger, smaller, or the
same as the size of the doors on your shed as here, for
example?
A. I would not begin to speculate, sir.
Q. And is your answer the same if I showed you
your Picture Number 11 and asked you whether that was the
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same size, larger, smaller, or the same as the shed door
facing your house in Number One?
A. Not specifically saying -- the size of the door
is obviously smaller -- excuse me. My front door?
Q. This one here. (Indicating.)
A. That is the front. Again, I could not
speculate.
Q. So you can't tell me whether all of these
buildings you have here are in area and volume smaller,
larger, or the same size as your particular structure?
A. That is correct.
Q. You said that the drainage issue was resolved
before you began your testimony on drainage history of the
subdivision. What did you mean by that?
A. The drainage issue, what I meant by that is my
initial enforcement notice that was issued to me on
April 15th of this year listed a drainage concern
expressed by Mrs. Wells.
Upon notifying Mr. Lao on my position
concerning other things in the enforcement notice and
concerning the drainage issue in general and inviting
Mr. Lao out during a major rain event, Mr. Lao decided to
remove that from my enforcement notice.
Q. Was there a point in time when you, by
permission, came over to the Wells' property to clean up
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some sand that had arrived on their property from your
property?
A. Yes, there was, and I believe that the date was
May 10th of 2007.
Q. And that was sand from your property that you
removed?
A. Yes, it was.
Q. And that was sand that you had used in the
construction of your accessory structure?
A. Absolutely not.
Q. So you deny that that was your sand?
A. It was my sand, but it had nothing to do with
the construction of our accessory structure.
Q. Where did the sand come from? If it is your
sand, where did it come from?
A. The sand was part of a play area that we had
purchased soon after we moved into the property in 1988.
It was a wooden structure that had a sandbox.
In fact, you can see it in the aerial
photograph, the exhibits that I entered earlier. It is a
white dot on both of those photographs. We purchased this
wooden play structure. It was a combination swing set,
raised clubhouse, sandbox underneath.
We sold that particular structure, I'm going to
guess, early 2007. Don't hold me to that. Somewhere in
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that time frame. Our children are grown to the point
where they do not use it -- did not use them.
The purchaser of the swing set, the play area,
did not want the sand. The sand was left behind after the
swing set was removed. I relocated the sand very close to
our shed and our adjoining property line.
During the days of May 9th, 10th, and 11th --
and please don't hold me to that exact date, because I
believe that is the general time frame. If you allow me,
I have the rain exhibits with me -- we received over three
inches of rain in that time period.
I agreed that I should not have placed that
sand near the property. That sand washed away in that
rain event. I took a half a day off of work, and when
Mr. Wells came home, I greeted him in his yard and very
apologetically apologized for my stupidity.
I removed as much of that sand from that
property as I possibly could, and I believe Mr. Wells
would confirm that. But that's where the sand came from.
It had nothing to do with the construction of our
accessory structure.
Q. Now, the drawing that you had submitted -- I
think it was identified as A2, this drawing here, is that
correct, A2, you testified that that is to scale?
A. Yes, sir.
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Q. And when you say to scale, you mean everything
depicted on there, the location of the house, trees, the
shrubs and everything?
A. The tree trunks, which are designated by a dot,
are to scale. The canopies are not to scale. Everything
else would be located properly.
Q. So if I was to look at, for example, Picture
Number One here that you identified --
A. Yes, sir.
Q. -- and the tree in the foreground would be the
same tree here on your -- this exhibit, you looked at it
to the right of the shed along the setback line?
A. Yes.
THE SOLICITOR: Mr. Neubaum, which photograph
are you looking at there, please?
MR. NEUBAUM: I am looking at one of the
photos, Number One. I think it was in the first packet.
MR. WEEKS: We want to make sure, because it is
being recorded, when we say here it is clearly identified.
Give Mr. Rundle a chance to --
THE SOLICITOR: You are looking at Applicant's
Exhibit A6 with a photo -- page one of that photo dated
04/23/2008?
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MR. NEUBAUM: Yes.
MR. WEEKS: Thank you.
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BY MR. NEUBAUM:
Q. And similarly I was looking at A6, Picture
Number 2, which appears to be taken from a porch or deck
at the back of your house, on Exhibit A2, that would be
part of the attached area as shown on A2?
MR. KEISER: Are you talking about the center
hatched area?
MR. NEUBAUM: Yes.
MR. HARE: I think it is Exhibit 4.
MR. WEEKS: We would like to correct, if you
would, that is Exhibit A6, Picture Number 2; is that
correct?
MR. NEUBAUM: Yes.
BY MR. NEUBAUM:
Q. Well, if you know, then, Mr. Keiser, which
hatched area would it be as depicted?
A. It would be the larger hatched area that
protrudes the furthest from the property, from the home.
Q. And then A6, Picture Number 4, on the right --
on the left-hand side rather, the photo, there is a tree
trunk; would that be the tree trunk in the bottom
left-hand portion of your property as you would look at
the A2 horizontally?
A. Yes, it is. Also in that photograph, I might
add, that brown area in the left center of the photograph,
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that was the location of the sandbox where the sand came
from.
Q. And then in A6, Picture Number 5, the tree
trunk that you just referred to is a little more
prominently shown in the left-hand portion of that
photograph; is that correct?
A. Right, that's correct.
Q. Now, I would like to show you a photo that you
didn't take, but I am going to ask you if you are familiar
with what is depicted in that picture. (Handing
photograph.)
A. Yes, I am.
Q. What is depicted in that photograph?
THE SOLICITOR: Are you going to be offering
this as an exhibit, Mr. Neubaum?
MR. NEUBAUM: If he can authenticate it, yes.
THE SOLICITOR: Proceed.
MR. KEISER: I answered yes.
BY MR. NEUBAUM:
Q. And what is depicted in that photo?
A. This appears to be a picture taken of our rear
yard from a vantage point somewhere in the back of the
Wells' property at an elevation above my six foot fence.
In the left center portion would be the northern wall of
our shed. The green area is our rear yard.
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Q. So when you described your property and all the
things that are in it, what is that thing depicted there
in the middle of the photo?
A. That is an area that we have had on our
property since 1988 when we have occasional campfires, sit
around the fire, roast marshmallows and that kind of
thing.
Q. It is a fire pit, right?
A. Yes.
MR. NEUBAUM: Can I have A2, please?
THE SOLICITOR: (Handing documents.)
BY MR. NEUBAUM:
Q. Would you mark on A2, on your scale drawing,
the location of the fire pit? Just put a little circle
and maybe the initials FP or something.
A. (Complying.) This obviously will not be to
scale, but my best guess of where it is.
Q. Okay. Fine. And can you tell me how far that
fire pit is from the property line?
MR. KEISER: I would object to that question.
THE SOLICITOR: Excuse me?
MR. KEISER: I would object to that question.
THE SOLICITOR: On what basis?
MR. KEISER: Relevance.
THE SOLICITOR: Do you have any concerns?
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MR. HARE: What is the reason for the question?
MR. NEUBAUM: Well, the reason is to establish
from the photograph and from the location of the fire pit
available flat area of his rear yard on which a shed can
be easily placed outside of the setback.
MR. HARE: Okay.
THE SOLICITOR: The objection will be
overruled. And just for the record, you requested that
the fire pit be labeled FP?
MR. NEUBAUM: Yes.
THE SOLICITOR: Is the fire pit, Mr. Keiser,
what is in blue circled with an X on it?
MR. KEISER: That is my approximate location
without physically locating it on the plan.
THE SOLICITOR: I'm going to write the letters
FP over that so it will correspond to the testimony.
Proceed, Mr. Neubaum.
BY MR. NEUBAUM:
Q. How far is the fire pit from the adjoining
property line with the Wells' property?
A. Well, let's get a scale out and I will tell
you. And this will be approximate. And I'm going to need
that drawing, sir, that I put it on.
Where I placed it is approximately 38 feet.
MR. NEUBAUM: I will submit that, what I will
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call Wells Number 1. It has been authenticated by the
witness.
(Wells Exhibit No. 1 was marked.)
BY MR. NEUBAUM:
Q. You said the dimensions of your shed are
12 feet by 16 feet?
A. That is correct.
Q. And it is 10 and a half feet high?
A. Correct.
Q. If you know, and I'm referring to A6, Picture
Number 1, do you know what the distance is -- I guess we
will call it what, the eve or the roof line, it is from
the top point of the roof line down to where it becomes
horizontal with the top of the rest of the building?
A. I do not know.
MR. NEUBAUM: No other questions.
THE SOLICITOR: Mr. Keiser, in 2004 when you
were contemplating replacing the existing shed then
located on the property, were you aware at that time of
the 10-foot rear yard setback requirements of the zoning
ordinance?
MR. KEISER: I was not. As I had previously
testified, the exhibit that I showed you there originally,
the original subdivision exhibit, was also attached to our
deed when we bought the property. That particular exhibit
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showed no setback requirements along the rear or side
property lines.
THE SOLICITOR: When you contemplated replacing
the shed and had a conversation with Mr. Hobis, and the
substance of the conversation you have somewhat summarized
in the letter exhibit which is A7, you made reference in
there to the requirement for a building permit?
MR. KEISER: That is correct.
THE SOLICITOR: Did you at that time make an
investigation of the requirement for a zoning permit?
MR. KEISER: We did not. My specific question
to Mr. Hobis was what permits are required to do what we
want to do.
THE SOLICITOR: Your letter does not indicate
that, correct? Your letter indicates only that no
building permit was required?
MR. KEISER: That's what he confirmed. Those
are his words, yes, sir.
THE SOLICITOR: When you purchased the home in
1988, was the earlier shed located on the property at that
time?
MR. KEISER: To a smaller scale. In a smaller
scale. It was basically there for storage of firewood
from the previous owner. We are the second owners of the
property.
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THE SOLICITOR: I understand. But was the shed
located on the property in 1988?
MR. KEISER: Yes. Yes, it was, for storage of
firewood. There was nothing else stored in it. It was
basically a lean-to.
THE SOLICITOR: I am just asking whether the
structure --
MR. KEISER: I'm sorry. The answer is yes.
THE SOLICITOR: And in 1988, I believe you
indicated that it was adjacent to the six foot fence
located to the rear of your property?
MR. KEISER: In 1988, our six foot fence was
not there. The shed was on the property line surrounded
by forsythia bushes. We had an apple tree back there.
There was a pear tree and a peach tree back there. It was
nestled all in that little grove area there on the
property.
I constructed the fence in 1993 as part of a
permit that we received from the Township to build a deck
and to do a room addition. That was issued in 1993.
THE SOLICITOR: You got a building permit to
build the addition to your home and the deck?
MR. KEISER: When we purchased the property in
1988, there was no deck on it. There was a concrete patio
with a sliding door exiting out of the basement. On that
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concrete patio was a structure with a screened-in porch.
In 1993, we removed that screened-in porch and
enclosed it and turned it into a sunroom, built the deck,
and put up the fence. We all the time in 1988 had split
rail fences along our northern property line and along our
eastern property line. A portion of those fences was
removed in '93.
THE SOLICITOR: You mentioned obtaining a
permit in 1993?
MR. KEISER: Yes, we did.
THE SOLICITOR: What permit did you obtain in
1993?
MR. KEISER: It was a building permit for the
expansion -- for the construction of our sunroom, our
deck, and our fence.
THE SOLICITORS: Do any board members have
questions?
MR. WEEKS: I'm going to ask you an expertise
question since you qualified yourself as an expert.
THE SOLICITOR: Hold on. He did not qualify
himself as an expert. There was no voir dire with respect
to expert testimony.
MR. WEEKS: Then I withdraw that part, and I'm
going to ask you from the testimony that I heard that you
have familiarity with zoning issues?
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MR. KEISER: Yes, I do.
MR. WEEKS: And it may be in a different
township with different rules or a different borough, et
cetera?
MR. KEISER: It is with Carlisle.
MR. WEEKS: Generally speaking, then, people
who come in to engage in building a fence or shed or
something, do they usually seek advice on zoning
requirements, heights, structures, types, fire codes,
things like that?
MR. KEISER: Those are routine questions that
we receive all the time at my office.
MR. WEEKS: And so that would have been
something that I could expect you have done with
Mr. Hobis?
MR. KEISER: That was my purpose of my call,
yes, sir.
MR. WEEKS: And your testimony in writing said
you specifically zeroed in on building, but I find it
strange you didn't specifically testify as to your
awareness or lack of awareness about the zoning
requirements.
MR. KEISER: Zoning --
MR. WEEKS: With your background, I would
expect that. So help me understand that.
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MR. KEISER: I will help you understand that.
In 2004, it was a very trying time for building code
officials. This is the year that the Uniform Construction
Code was put into place across Pennsylvania.
Each municipality by April 9th of 2004 was
required to decide if they are going to enforce the
Uniform Construction Code with their own personnel, they
were going to hire consultants, or if they were going to
defer to the Department of Labor & Industry.
In my particular case, Carlisle borough, we did
not have zoning permit requirements until 2005. And the
reason we didn't have them, we dealt with zoning issues
based on the building permit.
I had no reason to believe that there was a
zoning permit required in North Middleton. I certainly
wasn't familiar with it in my jurisdiction.
We didn't have a zoning permit until we lost
the building code permit requirements. We had no other
way to check setbacks. That is how we dealt with building
code requirements. So that's why I am speaking about that
in my testimony.
MR. WEEKS: Okay. Thank you. I would like you
to address your statement that there has been inconsistent
enforcement. Could you elaborate just a little bit more
on what that means and how it affects you?
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MR. KEISER: Well, just looking around our
neighborhood -- my wife and I take walks almost every
evening -- I don't care which street you go down, there
are numerous accessory structures all located so much
closer to the property line than ourselves, right on the
property line.
When I entered the exhibit of the zoning permit
for 2 Mountain View Drive, that's inconsistent
enforcement. The rules are in place, and they were not
properly enforced by Mr. Fagley.
He issued that permit in error. That's what I
am speaking to about inconsistent enforcement.
MR. WEEKS: So that your awareness of 204-131
North Middleton code came to you after the fact of
building it; is that correct?
MR. KEISER: Which one are you speaking to,
Mr. Weeks?
MR. WEEKS: 204-131 permits North Middleton
code, general requirements for zoning permits.
MR. KEISER: Yes, when I got my notice on
April 15th.
MR. WEEKS: The light bulb went off, so to
speak?
MR. KEISER: Yes.
MR. WEEKS: Okay.
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MR. KEISER: I even had a conversation with
Mr. Wells. I called him that evening. I said when I
discussed building permits, I believe the Township made an
error.
They should have required a zoning permit.
There should have been no question about it. It was
obvious to me then.
MR. WEEKS: Mr. Hobis isn't here, so I don't
think we can
MR. KEISER: I am talking about Mr. Wells.
MR. WEEKS: Mr. Wells will have a chance.
You showed us a picture of the arborvitae which
is approximately how old?
MR. KEISER: Those arborvitae were planted two
gallon sized in 2004.
MR. WEEKS: So roughly eight feet high?
MR. KEISER: There is a couple that shoot up
over ten, but the average height of those I'd say is six
and a half to seven feet.
MR. WEEKS: Is your shed on a poured
foundation?
MR. KEISER: It is constructed from the
concrete block that I removed from the previous structure.
There is three layers of concrete block that support that
structure.
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MR. WEEKS: So there is no poured footer?
MR. KEISER: No, sir.
MR. WEEKS: Okay. So --
MR. KEISER: I poured some of the end joints --
some of the end blocks full of concrete and anchored the
shed into those.
MR. WEEKS: The slope that you testified that
was part of the original subdivision plan, as I scoped out
the hard to read lines, they were about two feet off of
each other?
MR. KEISER: They are two foot contours.
MR. WEEKS: It looked like at most you had a
16-foot slope.
MR. KEISER: It is actually 400 -- the
elevation at Circle Road in front of our property is 444
feet above sea level. At the adjoining property line, it
is 432.
There is a drop of 12 feet across our property.
There is a drop of eight feet from the front of our home
to the back of our home.
We have a daylight basement. You walk out.
That is easy to understand. From that point to our
property line with the Wells there is an additional
four-foot drop.
MR. WEEKS: So that the picture on A6,
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Number 1, does not show or does show a four-foot grade
drop?
MR. KEISER: That is only half of the view of
our backyard. You cannot see our house, but you can see
the slope of the arborvitae. You can see how the shed is
dug in. That is not level ground. That is uphill to our
house a difference of four feet of elevation from the
fence behind the shed to our door into our basement.
MR. WEEKS: Okay. But for the period of land
that was addressed in your marking the FP, fire pit, to
the front of the shed, is that a four-foot drop or a
two-foot drop?
MR. KEISER: Well, we recently had a swimming
pool contractor coming out talking to us about putting an
inground pool in the back, and they shot the elevation
from our little deck that -- the deck to right of that
photograph, from that point to our shed, was approximately
24 inches in drop.
MR. WEEKS: Thank you. I'm going to reserve
the right to come back and ask you a question after I hear
testimony. Anything from you?
MR. BENNETT: No, nothing actually.
MR. HARE: Just maybe a few questions.
In the packet that we got with your
application, I am reading from it, it says because of the
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unique physical circumstances there is no possible way
that our property can be developed in strict conformity
with the provisions of North Middleton Township Zoning
Ordinance.
As such, authorization of a minimum variance of
eight foot on the northeast corner and seven foot on the
southeast corner of our shed will enable the continued
reasonable use of our property.
Are you saying, sir, that if the Zoning Board
would require you to move the shed westerly towards your
house, that it could not be done?
MR. KEISER: Physically, it could be done, but
that would certainly enter into our quality of life and
enjoying the use of our backyard. We have a roughly 20 by
25 foot area of grass in our backyard. It is very small.
Moving that shed in the direction that you
suggested would put the shed on one third of a 20 by 25
foot backyard.
THE SOLICITOR: So it is really the choice of
use that you want with respect to the location of the
shed.
MR. KEISER: I'm not sure I understand your
question. The choice of my use?
THE SOLICITOR: The area closer to your home,
sitting in front of your shed more than ten feet from the
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property line, it is possible, as you just testified, to
place the shed such that the rear wall would be on that
ten-foot setback line.
MR. KEISER: Yes. Physically, you could do
that, yes.
THE SOLICITOR: You don't place it there or you
didn't place it there because you wanted to have more yard
space to utilize; fair statement?
MR. KEISER: That's a fair statement. There is
a little more that is involved in that. When we
originally located it, we were concerned about the visual
impact to the Wells, and I made an extra effort to lower
that foundation as low as I possibly could.
And the lowest point of our lot is at the
property line. If you require us to move that shed and we
choose to comply with that, our shed will grow by that 24
inches we talked about earlier and be more of a visual
impact from the property line.
THE SOLICITOR: But would be in compliance with
the zoning ordinance, correct?
MR. KEISER: Oh, yes. Yes. Absolutely. But
it was a decision that we made jointly when we originally
talked about it with Mr. Wells.
THE SOLICITOR: When I refer to choice of use,
what I meant was, and I think you now understand, you want
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to utilize the front of the shed as your yard as opposed
to having it as a storage area with the shed located
there.
MR. KEISER: It is the only place on our lot
where we can get some privacy. We are on a corner lot.
That is the only area we have to be on our yard by
ourselves. That is the only usable enjoyable area of our
lot, that is correct.
MR. BENNETT: The original shed was smaller,
right?
MR. KEISER: Approximately eight by 12 by six
foot tall.
MR. BENNETT: Was there a reason when you
rebuilt you had to expand or just --
MR. KEISER: It is full. It is full now.
MR. WEEKS: Sheds do that.
MR. HARE: In line with my previous question,
just let me finish here, if you would move the shed
towards the house and then you have the elevation issue,
would the door issue be worse because of the elevation
issue than where it is at right now?
MR. KEISER: The reason the door is an issue
now is because of my desire to keep that shed height as
low as possible. If I move it up, the door could be an
issue. If I tried to limit the height of the structure
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again or if I put it on that elevation, the back of the
shed will be sticking up approximately 24 inches out of
the ground.
MR. HARE: I understand. Okay.
MR. WEEKS: Anymore questions? Reserve the
right to come back?
MR. BENNETT: Yes, sure.
THE SOLICITOR: Any further questions of the
witness?
FURTHER EXAMINATION
BY MR. NEUBAUM:
Q. Mr. Keiser, from what I recall, you had
testified you began building this shed in late 2004?
A. The fall.
Q. The fall of 2004. At that time were you aware
North Middleton Township did have a zoning ordinance?
A. I was not -- I'm sorry. Zoning ordinance. I
thought you said zoning permit. No. Obviously I knew
there was a zoning ordinance.
Q. Now, this prior structure that you referred to,
how tall was it?
A. Six foot tall, approximately. A little less
than that.
Q. So it would have been as high as the fence is
now along that side of the property?
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A. It probably was six inches lower than that
fence.
MR. NEUBAUM: That's all the questions I have.
THE SOLICITOR: For the record, there is one
member of the public sitting to the rear. Sir, do you
have any questions you wish to ask the witness?
SPEAKER 1: No.
THE SOLICITOR: Thank you, sir.
Do you wish to offer any other witnesses to
testify, Mr. Keiser?
MR. KEISER: No. All I have is a summation.
THE SOLICITOR: You rest?
MR. KEISER: Yes, sir.
THE SOLICITOR: Do you move for the admission
of your Exhibits Al through A13?
MR. KEISER: Yes, sir.
THE SOLICITOR: Are there any objections to the
exhibits?
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MR. NEUBAUM: Other than my prior objection to
I think A7, no objection relative to the exhibits.
THE SOLICITOR: Al through 13 are admitted. Do
you wish to present testimony -- why don't we give a
five-minute break for the stenographer?
MR. WEEKS: Five minutes.
(Short recess.)
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MR. WEEKS: Back on the record.
THE SOLICITOR: Mr. Neubaum, you may call a
witness.
MR. NEUBAUM: I call Mr. Doug Wells.
DOUG WELLS, being duly sworn, testified as
follows:
EXAMINATION
BY MR. NEUBAUM:
Q. State your name, please.
A. Doug Wells.
Q. Do you own the property at 131 Cumberland Road
in Carlisle?
A. Yes.
Q. And where is that property located?
A. Adjacent to the rear of Mike and Kathy Keiser's
property on the -- there is a cul-de-sac property directly
behind the yellow highlighted block as denoted on Mike's
illustration.
Q. On this large exhibit number which I don't
recall --
THE SOLICITOR: Why don't we do it on this
small exhibit?
MR. NEUBAUM: I was just going to point out and
ask if it is Lot Number 74 on that exhibit.
BY MR. NEUBAUM:
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Q. Is that the property you own?
A. That is correct.
Q. With regard to Exhibit A2, can you kind of note
on there where your property you own is located?
A. (Complying.)
Q. And you put an X on that exhibit. Is it
correct to say then that you own property that immediately
adjoins the Keiser property on the east side of the Keiser
property where the shed is located?
A. That is correct.
Q. And when Mr. Keiser was testifying about the
Wells and the Wells' property, is that your property?
A. It is.
Q. Could you tell the board what you know about
Mr. Keiser's shed being erected in late 2004, 2005?
A. To my recollection, it was -- the previous
structure that was there behind the shed was taken apart
in the fall of 2004, and in 2005 the shed that is there
currently was erected.
Q. What conversation did you have at that time
with Mr. Keiser about placing the shed?
A. There was no discussion with regard to the
placement of the shed or any reference to zoning or
building permits having been requested.
Q. Did you have, at any point, any conversation
,.
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with Mr. Keiser about the shed?
A. No.
Q. So your testimony is that you never spoke with
him and he has never spoken with you about this shed from
the fall of 2004 to date?
A. There is no discussion with regard to him
building this shed, the design of the shed. During the
time at which Mike was building the shed and in fact was
putting the roof trusses on the shed on top of the shed
structure, he obviously was overlooking our patio area and
talking -- I don't remember the specific discussion.
But at that time, that was the only dialogue
there was specific to the shed, after it had been erected
and he was in fact putting the roofing trusses on.
Q. And what was the nature of that conversation?
A. I don't recall.
Q. Do you oppose Mr. Keiser's application for a
variance?
A. I do.
Q. And why do you oppose Mr. Keiser's application
for a variance?
A. The proximity of the rear of the shed to the
dining room window and our deck is obviously -- it is a
very large structure. So when you look at the six foot
fence, there is clearly a huge structure beyond that six
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foot fence.
And when you are sitting in the property,
inside the house, you look out and you actually see this
very opposing large shed that is on the property line from
the rear of our property.
Q. Why hadn't you said anything to anybody about
it before?
A. On April 18th, Mike, as he testified earlier,
did leave a voice mail with me at my office. I was in
Washington D.C. at the time. When I returned to the
office, at the end of the day I returned the call to Mike.
And when we had that discussion, my words to
Mike was that Mike, when you were putting the shed up, I
assumed you did your homework. And by that I meant the
building and/or zoning permits. And I will admit I am not
an expert in this field. So I have learned a lot in the
last three or four months.
But there is no consultation. On April 18th
when we were having the discussion is that we assumed Mike
had done his homework because of his position in the
borough.
And as such, when the shed, when we saw where
the shed was being constructed, immediately behind that
fence where he was putting on his roofing trusses, Denise
and I, neither one are meddling neighbors, so the point
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being that the homeowner is able to do what he or she
chooses provided it fits into the requirements set forth
by the Zoning Board or the Township.
So when he put the shed up, assuming that the
homework was done and the proper permits or zoning permits
had been applied for through that process, that we were
not going to create a problem because it was just our
opinion versus now knowing that in fact the zoning of the
setback ordinance.
Had we known at that time, had a discussion
occurred that we are putting the shed behind the fence,
and by the way, it needs to be set forward by ten feet,
that would have been a much different discussion. We
would not be having this discussion today.
And as I explained to Mike on April 18th is
that when the shed was erected and completed, that Denise
or I, neither one appreciated, you know, what that shed
looks like from our vantage point.
Just as Mike was indicating that it would take
away the enjoyment of his own property, I would also say
that it takes away the enjoyment of our property.
Q. I want to hand you a photograph and ask you if
you are familiar with what is depicted in that photograph.
(Handing photograph.)
A. I am.
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Q. Can you identify that scene?
A. I can.
Q. And what is depicted in that scene?
A. It is the inside view of our privacy fence
standing on our patio looking out over Mike's backyard
beginning with his privacy fence, his shed, rear yard, and
burn pit, and then the back of his property, right back of
his house.
Q. Is that what the shed looks like from the patio
behind your house?
A. It is.
MR. NEUBAUM: I have marked that Wells
Number 2. That's all the questions I have.
(Wells Exhibit No. 2 was marked.)
THE SOLICITOR: Mr. Keiser, do you wish to ask
Mr. Wells any questions?
MR. KEISER: I do.
EXAMINATION
BY MR. KEISER:
Q. Let's start with that photograph that he just
presented. Douglas, what was the date this picture was
taken?
A. I am not aware of the date the picture was
taken.
Q. You testified that this is a view from your
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backyard?
A. Yes.
Q. The person that took this picture appears to be
about ten feet tall. If our fences are six foot tall, how
could that possibly be an accurate view from your backyard
of our shed?
A. I am not sure I understand the question.
Q. If you are looking at the photograph, this is
the top of your fence. This is the top of our fence. The
camera view is obviously whatever that distance is, which
is several feet higher than the fence.
So the person that took this picture had to be
standing on something to get that vantage point or had to
be a fairly tall person, wouldn't you agree?
A. I would assume that there was some -- I don't
know. I did not take the picture, so I can't comment.
Q. And you testified you do not know the date that
this photograph was taken?
MR. WELLS: Was this your --
MR. NEUBAUM: Hold on.
MR. WELLS: I cannot testify as to the date,
the exact date of the picture, no.
BY MR. KEISER:
Q. Okay. Thank you. I would like to go back to
exhibit -- it was our first series of photographs, the ten
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series, Photograph Number 9.
THE SOLICITOR: One second.
MR. WEEKS: Everybody has to have it.
THE SOLICITOR: Are you referring to
Applicant's Exhibit All, those ten?
MR. KEISER: It would have been the first
exhibit of photographs. I believe it is A6. You show me
A6 and I will show you if that's the photograph I want to
talk about.
MR. HARE: (Indicating.)
MR. KEISER: No. That is in the third -- I'm
sorry. I am looking at A9. It is Exhibit A6, Photograph
Number 9.
You have it, Mr. Bennett.
BY MR. KEISER:
Q. Douglas, I'm going to show you that photograph.
(Handing photograph.)
A. Let me look at the bigger picture.
Q. All right.
A. Okay.
Q. Would you agree that that is a photograph taken
at an average height? And I testified that this
photograph was taken with a zoom lens from the front of
your property on Cumberland Drive. Where is your dining
room window at?
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A. If looking at this picture, the dining room
window would be immediately to the right of this corner.
THE SOLICITOR: Of this corner, you mean the
corner of the house?
MR. WELLS: That is correct. Immediately to
the right of this corner of the house.
BY MR. KEISER:
Q. Would you agree that this view is a better
representation of the view of our shed from your dining
room window than the exhibit your attorney has presented?
A. No.
Q. Why is that?
A. Because the view from the window is immediately
and directly to the rear of the shed.
Q. And that's in direct alignment with your
window? If you look out your dining room window, you are
looking at those shrubs and the roof of our shed; is that
correct?
A. I am looking at the back of your shed and the
roof.
Q. So you do agree that is a representation of the
view of our shed from your dining room window?
A. From this angle, I do not agree that it is a
representation of the picture of the shed from my dining
room window, because it is not a picture from my dining
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room window.
Q. Would you agree that if your dining room window
is right of the angle that the picture was taken, your
view would be slightly right of this position?
A. I can't comment. I don't know the exact
distance or proximity of where this picture was taken to
the view of my dining room window.
Q. Let me try and clarify it. From the side of
your property, your home there, that is your southern
elevation. You go around the corner to the right, and
your dining room window is how far from that corner?
A. I would have only a guess. Four feet. Three
feet.
Q. Four feet. And the photograph that you
presented here within the last few minutes was taken
behind the darker six-foot tall fence that is shown in
this exhibit in the right center of the photograph looking
at the northern portion of or the northern wall of our
shed; is that correct?
A. That is correct. And as a point of reference,
I would also add that there is -- we have a brick paver
stone patio. So there is an elevation as you come into
the back of that fenced area. It is not at the same
elevation as the yard would be. So in fact, it would be a
few inches higher than the yard itself.
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Q. So it is still your testimony that you feel the
previous exhibit that was entered is a more accurate view
of our shed from the dining room window than this
photograph?
A. Previous exhibit, are you referring to this?
(Indicating photograph.)
Q. No. I am talking about your exhibit.
A. Yes, this is a more accurate reflection of our
view from our dining room window. Again, I would like to
note that this particular angle, as you can see, there are
more shrubs on the opposite side of the shed which don't
block the view if you are looking at it from the dining
room window.
So the shrubs to the center left of this
photograph, obviously they get smaller, shorter as you go
to the other end of the shed.
Q. So if I understand your testimony now, Douglas,
you just indicated it is about four feet from the corner
of your property to the edge of your dining room window.
And when you look out that window, that's a
clear view of the northern part of our shed, and your
photograph was taken from your backyard; is that your
testimony?
A. I would say that neither represent the view I
get from my back window.
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Q. In our exhibit, and I am talking about A6,
Photograph Number 9 still, the shrubs that are planted
there behind our shed, are those your shrubs?
A. They are.
Q. And when were those planted?
A. After the shed was constructed.
Q. And based on our discussions previously, you
planted those to enhance your view; is that correct? Is
that a fair statement?
A. Or in other words to hide the shed.
Q. So to enhance your view, from your perspective?
A. No. To hide the shed. Those are my words.
Q. I understand. You testified that I called your
office on April 18th?
A. Correct.
Q. And that we had a general discussion about the
shed. And it was your testimony that we had no previous
conversations concerning the shed; is that correct?
A. Other than the point of reference I made when
you were putting those trusses on top of the shed
structure.
Q. And what did we discuss at that time?
A. I don't recall. I do recall on April 18th that
I made the point to you that there had been no consulting
with regard to the placement of the shed, the design of
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the shed, prior to that shed being built.
Q. Do you recall in that April 18th conversation
about when we chose the color of the shed?
A. I do recall you made reference to selecting a
color that would tie in to the surrounding areas,
something along -- I don't remember specifically.
Q. That's fair enough. Mr. Wells, you testified
that this is currently your property. You own this
property with Denise; is that correct?
A. That is correct.
Q. And do you reside in this property, sir?
A. I am not sure the relevance of that question.
I am a property owner.
Q. Your exact testimony, if I recall, was that you
resided in this property.
A. When the shed was erected.
Q. Okay. That's a fair statement.
A. When the shed was erected, I resided in that
property.
MR. KEISER: I have no further questions for
this witness.
THE SOLICITOR: Any redirect?
MR. NEUBAUM: No.
THE SOLICITOR: You have owned this property
since when, sir?
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MR. WELLS: We moved in
are the second owners of that prop
MR. WEEKS: Just so I'm
meeting occurred in what year?
MR. WELLS: This year.
THE SOLICITOR: Was the
the back of your house standing by
window?
October 2000, and we
arty.
clear, the April 18th
I'm sorry.
prior shed visible from
your dining room
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MR. WELLS: No, sir.
THE SOLICITOR: Does the board have any
questions?
MR. HARE: I have a couple of questions.
Sir, do you live in that house today?
MR. WELLS: I do not.
MR. HARE: Who lives in that house?
MR. WELLS: My wife lives in the house.
MR. HARE: Going into the back of your
property, do you step up any steps to get into your house,
off of I guess your patio, your brick?
MR. WELLS: No. It is -- the brick patio is
kind of a kidney shaped patio. If you can visualize a
privacy fence leading into their back door, it is a slope.
It is a down slope. It is a downward slope to my back
door of the property. There are no steps into the house.
I would clarify just from the immediate back
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door off of the patio is a storm door that leads into a
three season room, an enclosed structure with windows. It
is not heated. It is not air conditioned.
Into the house as it would be a normal step up
into a poured patio, if you will, there is a two or three
inch elevation between that patio through that Florida
room into the house itself.
MR. HARE: The photograph I think is noted
Wells Number 2?
MR. WELLS: It is.
MR. HARE: Who did take the picture?
MS. WELLS: I did.
THE SOLICITOR: You are -- you have to answer
the question, sir.
MR. WELLS:
MR. HARE:
MR. BENNET'
you ever have planted
MR. WELLS:
MR. WEEKS:
between your property
'93?
Denise took the picture.
That's all I have.
C: If the shed wasn't built, would
the shrubs?
No.
The fence that you are referring to
and your neighbors' was built in
MR. WELLS: The -- Mr. Keiser's fence?
MR. WEEKS: Yes.
MR. WELLS: I don't know when the original
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fence was put up. It was there.
MR. WEEKS: It was there when you moved in in
2000?
MR. WELLS: Yes.
MR. WEEKS: And at that time your testimony,
you answered another question, was you could not see an
existing small shed, wood shed, but you did see the
erection of the 10.5 foot high 12 by 16 brown shed that we
see here --
MR. WELLS: Yes.
MR. WEEKS: -- whether it has been repainted or
not?
MR. WELLS: Yes.
MR. WEEKS: And at that time, did you complain
to your neighbor and say I want you to move it closer?
MR. WELLS: No.
MR. WEEKS: You went ahead and then put up
shrubs. At that time when he first constructed it, were
you bothered by water runoff?
MR. WELLS: The water runoff is actually -- I
would say the shed is a compounding problem. We have had
problems with water runoff in that area of the yard prior.
MR. WEEKS: And you heard testimony earlier
tonight about the slope, the topography of the land, that
you are downhill from Mr. Keiser?
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MR. WELLS: Right.
MR. WEEKS: So normally water would flow to
your swale?
MR. WELLS: In that immediate area on that side
of the yard, I would tell you from -- there is a grassy
area immediately behind this fence that runs along the
back of my property, the back of our property, to
Mr. Stenson's (phonetic) property, which is a neighbor of
Mike.
There is a five, six foot stretch of grass that
I would mow. There were times in the spring immediately
following heavy rains that it would be too wet to mow that
piece of the yard.
On the opposite side of that where the shed is
built, in fact -- thank you. And I apologize, I don't
know the exhibit, but this is the picture of the area I am
referring to.
This stretch of grass is mowed every year.
There are some times during a heavy rain that it will take
a day or two or three to dry out before I get a tractor or
mower, so it doesn't mar down in the soft, but in this
area --
MR. WEEKS: Just a minute. We are going to get
the first picture you held up identified.
MR. WELLS: It is Number 7. I'm not sure which
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batch this came from.
THE SOLICITOR: You are referring to
Applicant's Exhibit All, Photo Number 7.
MR. WELLS: That is correct.
MR. WEEKS: We need that.
MR. WELLS: Sure. I understand. Thank you.
MR. WEEKS: Now proceed.
MR. WELLS: So at the other end of this
fenced -- so again, referring to this, so as you proceed
toward the shed area in this area here, so this would
be -- this fence would be the fence immediately behind the
shed structure on Mike's property. This is photo
number 5.
•
THE SOLICITOR: On All. Go ahead.
MR. WELLS: And it is, as Mike noted, that the
slope in that area immediately under the fence has gotten
larger since the shed was put in.
So in fact, we have had mulch. And immediately
under this bush, this forsythia tree is where the sand
that Mike had described earlier had rushed -- run off from
his property, and it was under this forsythia tree.
And Mike, as he testified earlier, was in our
yard, and he had his wheelbarrow, and he was cleaning up
the sand from our property. But the erosion as you can
see under that fence line has in fact gotten worse since
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that shed was put up, so much to the point where when we
had the patio put in place, that shed, that was -- that
slope was not there.
MR. WEEKS: If this shed is moved eight feet
further away from the property line, eight feet
encroaching on the northern eastern tip, I think it was
testified to, it would still be visible?
THE SOLICITOR: You have to answer verbally.
MR. WELLS: It would be, yes.
MR. WEEKS: Would that alleviate any problems?
MR. WELLS: There are two conditions. One is
there -- with the water, although it is a secondary
problem, that would I think improve the erosion in that
area of the property.
The second area is being that because of its
placement today, in the event we should decide to sell the
property in the future, there may be a problem in the fact
that that shed is built.
And because we are unable to enjoy the
property, one would assume any future potential homeowners
would not be able to enjoy the property as well with that
shed being immediately over the fence line, if that makes
sense.
MR. WEEKS: Thank you. That's all I have. You
have the right to recall your witness.
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THE SOLICITOR: Any redirect.
MR. NEUBAUM: No.
THE SOLICITOR: Any questions?
FURTHER EXAMINATION
0
BY MR. KEISER:
Q. I want to go back to photograph A6, Number 5.
A. You said A?
THE SOLICITOR: You said A6, Number 5.
BY MR. KEISER:
Q. All. I'm sorry. Mr. Wells, you heard my
testimony earlier about the natural flow of water in this
area, and if I understood your testimony correctly, you
were saying that this area has eroded greater since the
construction of our shed?
A. Yes, I was saying that butt line has eroded
greater as has the erosion underneath your fence line
immediately across from our fence where that erosion has
occurred.
Q. This area historically, you and I used to joke
about this, we do mulching about every two years, we're
basically on the same mulching schedule. When I was
cleaning up that sand that one day you said geez, Mike, I
need to get the mulch out there. Would you agree this
area hasn't been mulched?
A. In this photograph?
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Q. Yes.
A. I would say it has not been mulched recently.
Q. And obviously when it is mulched, that gap will
narrow; is that correct?
A. I fill that gap in with more mulch.
Q. And would you also assume, understanding my
testimony on how drainage works, if that gap is filled in
and water wants to flow to the north, what is going to
happen?
A. I did understand your testimony, and I would
say that if water were -- if mulch were in that area, it
would be washed away.
Q. Can we go to All, 7 photograph? Mr. Wells, you
have testified that this area of this property that you
own -- which would be west of your six foot privacy fence?
A. Correct.
Q. And do you recall my testimony that I indicated
that your fence line here was in the center of the Swale
area that I described which transfers runoff to the north?
A. I do recall.
Q. And you also testified that this area has been
historically wet?
A. Behind the fence line, correct.
Q. Do you recall my testimony about the exhibit
from Mr. Wittock, that erosion and sedimentation control
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report that he prepared as part of the subdivision plan?
A. I remember you talking about it. I have not
seen it.
Q. In that exhibit I testified that the soil on
your lot and the ground conditions on your lot were
subject to seasonal high water. Do you remember that?
A. I do.
Q. Would you agree that seasonally, you have high
water in that area?
A. I do.
MR. KEISER: I have no further questions.
THE SOLICITOR: Anything, Mr. Neubaum?
MR. NEUBAUM: No.
THE SOLICITOR: Is there any member of the
public that has a question? For the record, I see none.
MR. WEEKS: I have one more question for Mike.
Do you have gutters on your shed, runoff spouts?
THE SOLICITOR: Is this to Mr. Keiser now?
MR. WEEKS: Mr. Keiser.
THE SOLICITOR: He is not currently --
MR. WEEKS: I know. That's why I asked if I
could ask that question.
THE SOLICITOR: Not at this point.
MR. WEEKS: I will come back with that
question.
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Let me ask Mr. Wells. Are you familiar with
looking at that roof line, is there any gutter or runoff
control on that shed?
MR. WELLS: I do not recall any gutter systems
on that shed.
THE SOLICITOR: Any other testimony,
Mr. Neubaum?
MR. NEUBAUM: Yes. I call Denise Wells.
THE SOLICITOR: Mr. Wells, would you mind
moving back a little so the stenographer gets more of a
direct view of the witness?
MR. WELLS: (Complying.)
DENISE WELLS, being duly sworn, testified as
follows:
EXAMINATION
BY MR. NEUBAUM:
?J
Q. State your name, please.
A. Denise Wells.
Q. Are you an owner of the property at
131 Cumberland Drive, Carlisle, Pennsylvania?
A. Yes.
Q. Do you in fact reside there?
A. Yes.
Q. Do you oppose the application for the variance?
A. Yes.
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Q. This photograph identified as Wells Number 2,
did you take this photograph? (Handing photograph.)
A. Yes.
Q. Where were you when you took that photograph?
A. On the paver patio right behind our privacy
fence.
Q. Were you standing on anything at the time when
you took that photograph?
A. No.
Q. Did you have the camera at eye level?
A. I probably actually was holding it up and
taking the picture. (Indicating.)
THE SOLICITOR: Holding it up how high, ma'am?
MS. WELLS: I don't remember.
MR. WEEKS: Could you estimate in language that
would go on the reporter tape?
MS. WELLS: I was probably holding it up to my
forehead.
THE SOLICITOR: And you are how tall?
MS. WELLS: Five eight.
THE SOLICITOR: Thank you.
MR. NEUBAUM: That's all the questions I have.
THE SOLICITOR: Any questions, Mr. Keiser?
MR. KEISER: Yes, sir.
EXAMINATION
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BY MR. KEISER:
Q. Mrs. Wells, if I told you that I witnessed you
taking that photograph, can you dispute that?
A. No.
Q. If I told you that I saw you standing on your
bench that's on your brick patio taking that photograph,
can you dispute that?
A. No.
Q. Is it still your testimony that you were not
standing on anything?
A. Yes, I wasn't standing on anything.
THE SOLICITOR: You have to keep your voice up,
please.
MS. WELLS: I'm sorry. No, I wasn't standing
on anything.
BY MR. KEISER:
Q. And you testified you are roughly five eight?
A. Yes.
Q. And your testimony is that the camera was at
forehead level?
A. I would say it was up above my forehead, so the
lower end of the camera was right above my head. Because
I was taking it at the vantage point of what you see when
you come out.
When you come out our patio or our four season
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room or three season room, you look up to your -- we see
that more of an angle than when we are on there, but we
see a lot of this when we are right on our patio.
Q. Can I have your exhibit, please?
A. (Handing photograph.)
Q. So it is your testimony that the camera was
roughly at your forehead level. You have testified you
are five eight. Explain to me how that photograph can be
taken what appears to be at least three feet above the top
of your six foot tall fence. Explain to me how that is
possible.
A. I was holding it up, you know.
MR. KEISER: That's all the questions I have.
THE SOLICITOR: Any redirect?
MR. NEUBAUM: No.
THE SOLICITOR: Do the board members have
questions?
Do you recall the date the photograph was
taken, ma'am?
MS. WELLS: I am trying to think of that,
because the flowers that are blooming there I took that
right before -- I am trying to think. It will be maybe
three weeks ago I probably took that.
THE SOLICITOR: Roughly mid June?
MS. WELLS: Yes. You know, if I knew the date
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that I went and saw Victor, it was probably three days
before that, and then I had them made up so -- and I
haven't been in contact with him for very long. So I
would say within the last three weeks.
THE SOLICITOR: In the month of June?
MS. WELLS: Yes, in the month of June.
THE SOLICITOR: Thank you, ma'am.
Any member of the public have a question of
this witness?
For the record, I see none.
Any other testimony to present, Mr. Neubaum?
MR. NEUBAUM: No other testimony. Move for the
admission of Wells 1 and 2, and we will rest at this
point.
MR. WEEKS: Okay. It is admitted.
THE SOLICITOR: Do you have any rebuttal
testimony that you wish to give before Mr. Lao testifies?
MR. KEISER: No, sir.
Ruben LAO, being duly sworn, testified as
follows:
THE SOLICITOR: State your name for the record,
please.
MR. LAO: My name is Ruben, R-U-B-E-N, last
name L-A-O.
THE SOLICITOR: What is your position with the
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Township?
MR. LAO: I am the assistant code and zoning
officer for North Middleton Township.
THE SOLICITOR: Have you been instructed to
relate to the board any position taken by the Township on
this application?
MR. LAO: The Board of Supervisors in a vote of
three to two voted in favor of the zoning approval based
on the fact that an appropriate gutter system be put in to
divert the water away from Mrs. Wells' property, Mr. and
Mrs. Wells' property.
THE SOLICITOR: Any questions of Mr. Lao,
Mr. Keiser?
EXAMINATION
BY MR. KEISER:
Q. You said that vote was three-two in favor of
our application. The two members that did not vote in
favor of the application took no position concerning the
application; they felt it was best to be left to the
Zoning Hearing Board. Is that correct?
A. I have no knowledge of that. What I stated is
what I was told.
MR. KEISER: Thank you.
THE SOLICITOR: Any questions, Mr. Neubaum?
MR. NEUBAUM: No questions.
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MR. WEEKS: Board members?
MR. HARE: Yes, I do. Mr. Lao, is the gutter
system that we are talking about a gutter system on the
shed?
•
MR. LAO: Correct.
MR. HARE: That's all I have.
MR. BENNETT: I actually have a zoning
question. If you have a shed that is smaller, it is not
conforming to the setbacks, if you rebuild it wider, is
there anything in the zoning ordinance that would require
like a foundation to that extension?
Like I know the building code has requirements;
is there anything in the zoning board that requires frost
step, like a freezing line?
MR. LAO: Not when you are doing a zoning
permit. There is nothing to deal with frost lines or
anything like that.
MR. BENNETT: That's all I have.
MR. WEEKS: Mr. Lao, at the time you were not
here, Mr. Hobis was here in this position, but thank you
for your frame of reference as to the dates they are
talking about. While a building permit was not required
was a zoning permit required?
MR. LAO: Yes, it was.
MR. WEEKS: Was that documented in the zoning
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code?
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MR. LAO: Yes, it was.
MR. WEEKS: Has there been amendments to that
zoning code that would affect this applicant in terms of
whether it was six feet, ten feet, eight feet from a rear
yard setback?
MR. LAO: At the time the shed was installed,
there was a zoning permit required and the setbacks were
ten feet from the rear and side yards.
MR. WEEKS: Okay. The testimony was given by
the Keisers that there are multiple non-conforming
appearing sheds that implies inconsistent enforcement of
the zoning. Can you address that issue?
MR. LAO: Yes, I can to the best of my
knowledge. Inconsistent not during my time with this
department. I have enforced this ordinance over and over
and over again, much of it the individuals don't like
having to conform, but they do.
And I have been here only a short period of
time; I would say less than a year and a half. I don't
have cameras on everybody's house, on everybody's yard to
know every violation that exists. And for me to be
everywhere at one time to get everybody into compliance is
pretty unrealistic.
But there is -- the only reason why we
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addressed it with Mr. Wells (sic) is in this particular
case there was a complaint filed. So this is not
selective enforcement where the Township was going after
Mr. Wells (sic) for any particular reason other than a
complaint was filed.
MR. WEEKS: Have you seen the Keiser property?
MR. LAO: Yes, sir, I have.
MR. WEEKS: And you have heard the testimony
tonight as to the topography?
MR. LAO: Yes, sir, I have.
MR. WEEKS: And the original topographic map
that was presented appears to have been graded so that it
is not necessarily as originally prior to subdivision; is
that a fair statement? Can you address what you see as
the grade on lots -- the two lots that have been
identified?
MR. LAO: I can't tell you the exact grade. I
wouldn't be able to answer that.
MR. WEEKS: Then is there sufficient -- have
you been on the Keiser property?
MR. LAO: I have been on the side of the Keiser
property that faces Cumberland Drive. I have not been on
the interior of the property, meaning on the other side of
the arborvitae or on the inside of his fence, no. I have
not been in there.
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MR. WEEKS: So you could only guess as to the
slope of the land behind the house so that if he were to
move the shed eight feet closer off the line, is that an
extreme hardship? On the topographical issue only.
MR. LAO: As Mr. Wells (sic) stated, it can be
done. It can be done.
THE SOLICITOR: You mean Mr. Keiser?
MR. LAO: As Mr. Keiser said, it can be done.
Whether or not it is a hardship I suppose depends on, you
know --
MR. WEEKS: Everything is a hardship.
MR. LAO: You know, whether it takes up -- he
wants it someplace else or whether they view it as more of
an obstruction to view. It can be done. Whether or not
they want to do that is something else. But it is
possible to move the shed. It is not a permanent
structure.
E
MR. WEEKS: One last question: Are you aware
of any motion by the supervisors to change the setback
ordinance in the near future?
MR. LAO: That is correct. They are working on
a proposal to change the setback ordinances at some time
in the future. They have not given any dates as to when
that is going to occur.
MR. WEEKS: Any dimensions?
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MR. LAO: They are talking about a five yard
setback as opposed to a ten yard.
THE SOLICITOR: Foot or yard?
MR. LAO: Five foot. I'm sorry. Five foot
setback side and rear yard.
MR. HARE: For accessories?
MR. LAO: That's correct.
MR. WEEKS: Thank you. I have no further
questions.
THE SOLICITOR: Any follow-up questions by you,
Mr. Keiser?
MR. KEISER: I have one.
FURTHER EXAMINATION
BY MR. KEISER:
Q. Mr. Lao, are you aware of a letter I sent to
your supervisor, Township Manager Ehler (phonetic),
concerning this proposed ordinance in the future and
concerning the inconsistencies from my point of view in
the enforcement of these particular zoning ordinances?
A. I do recall you sending a letter to that
effect, correct.
Q. And specifically encouraging the Board of
Supervisors to look at some way to mitigate this township
wide shed issue where sheds are located closer to the
property or on the property line?
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A. You did send a letter to that effect. That is
correct.
MR. KEISER: Thank you.
THE SOLICITOR: Anything, Mr. Neubaum?
MR. NEUBAUM: No questions.
THE SOLICITOR: Any member of the public wish
to offer testimony this evening?
For the record, I see none.
MR. WEEKS: Any other questions?
MR. BENNETT: No.
MR. HARE: No.
THE SOLICITOR: Either party wish to offer any
further testimony before the record is closed?
MR. KEISER: Can we just have a minute?
MR. WEEKS: Sure. Off the record for a minute.
(Off the record.)
THE SOLICITOR: Back on the record.
MR. KEISER: We have nothing more.
THE SOLICITOR: Mr. Neubaum?
MR. NEUBAUM: Nothing further.
MR. WEEKS: The record on this hearing is now
closed.
0
(The hearing was concluded at 9:17 p.m.)
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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 the same.
nnif r A. Chance, Notary Public
NOTARIAL SEAL
Jennhr A Chance
NOTARY PUBLIC
Bom of Chwnbwebnrg, Frank#n County
My Cwnmieebn Expires pe/302011
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
MICHAEL T. KEISER AND
KATHY H. KEISER,
Appellants
V.
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD,
Appellee
and
DENISE J. WELLS and
DOUGLAS WELLS,
Interveners
NO. 08-04797 CIVIL. TERM
LAND USE APPEAL
PRA CIPE TO LIST CASE FOR ARGUMENT COURT-
To the Prothonotary:
Please list the above captioned case on the next Argument Court List.
I 'b
Document to be ruled upon: Notice of Land Use Appeal of Michael T. Keiser and Kathy
H. Keiser, Appellants
MALONE & NEUBAUM
4-
By: (,k
Date: lot
Victor A. Neubaum, Esq.
42 South Duke Street
York, PA 17401
(717) 843-8001
S.I.D. #29159
Attorney for Interveners, Denise J. Wells
Douglas Wells
;? ?'F
p.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
MICHAEL T. KEISER AND
KATHY H. KEISER,
Appellants
V.
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD,
Appellee
and
DENISE J. WELLS and
DOUGLAS WELLS,
Interveners
NO. 08-04797 CIVIL TERM
LAND USE APPEAL
CERTIFICATE OF SERVICE
I hereby certify that 1 have on this date served PRA I.PE TO LIST CASE FOR
ARGUMENT COURT on the persons and in the manner indicated below, which service
satisfies the requirements of Pa.R.C.P. 440.
EMaQ BY FIER CLASS MAIL. POSTAGE PREPAID:
Hubert X. Gilroy, Esq., Marston Law Offices, 10 East High Street, Carlisle, PA 17013, Attorney
for Appellants.
Michael R. Rundle, Esq., North Middleton Township Building, 2051 Spring Road, Carlisle, PA
17013, Attorney for North Middleton Township Zoning Hearing Board.
MALONE & NEUBAUM
Date: t
1,).Aj.
By:
Victor A. Neubaum, Esq.
42 South Duke Street
York, PA 17401
(717) 843-8001
S.I.D. # 29159
Attorney for Interveners
-? CJ
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OR<
4
MICHAEL T. KEISER AND
KATHY H. KEISER,
Appellants
V.
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD,
Appellee
and
DENISE J. WELLS AND
DOUGLAS WELLS,
Interveners
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 08-04797 CIVIL TERM
LAND USE APPEAL
IN RE: APPEAL OF DECISION OF NORTH MIDDLETON ZONING HEARING
BOARD
BEFORE EBERT. J.
ORDER OF COURT
AND NOW, this 8th day of January, 2009, the Honorable J. Wesley Oler, Jr., having recused
himself from consideration of this case, upon review of the Land Use Appeal of Michael and Kathy
Keiser from a decision by the North Middleton Township Zoning Hearing Board, and after
consideration of the briefs filed by the parties and argument;
IT IS HEREBY ORDERED AND DIRECTED that the appeal of Appellants Michael T.
Keiser and Kathy H. Keiser is DISMISSED and that the decision of the North Middleton Township
Zoning Hearing Board is AFFIRMED.
By the Court,
N-t ??
M. L. Ebert, Jr.
b'
f:
Hubert X. Gilroy, Esquire
Attorney for Appellants
?IVlichael R. Rundle, Esquire
Attorney for Appellee
,-,<ictor A. Neubaum, Esquire
Attorney for Interveners
cc®rt,es mi?-,LL
/I4/fit
1
2
MICHAEL T. KEISER AND
KATHY H. KEISER,
Appellants
V.
NORTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD,
Appellee
and
DENISE J. WELLS AND
DOUGLAS WELLS,
Interveners
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 08-04797 CIVIL TERM
LAND USE APPEAL
IN RE: APPEAL OF DECISION OF NORTH MIDDLETON ZONING HEARING
BOARD
BEFORE EBERT, J.
OPINION and ORDER OF COURT
Ebert, J., January 8, 2009
PROCEDURAL HISTORY
North Middleton Township filed an enforcement notice against the Michael T. Keiser and
Kathy H. Keiser ("Appellants") because they had built and placed a shed within the rear yard
ten-foot setback of their property, without obtaining a zoning permit as required by Section 204-
131 of the North Middleton Township Zoning Ordinance (hereinafter NMTZO). Appellants
applied for a variance from the NMTZO Section 204-16.F(2)(c) setback requirement in the
Suburban Residential (R-1) Zoning District. After a hearing on July 8, 2008, the North
Middleton Township Zoning Hearing Board ("ZHB") denied the Appellants' variance request
and issued its written decision. Appellants filed their appeal on August 11, 2008. Thereafter,
Denise J. Wells and Douglas Wells ("Interveners") intervened by Order of September 5, 2008.
3
STATEMENT OF FACTS
Appellants reside at and own property located at 2220 Circle Road, Carlisle, North
Middleton Township, Cumberland County, Pennsylvania. In June 1988, the Appellants
purchased this property, which is located in the Suburban Residential (R-1) Zoning District. The
property is also known as Lot 60 in the Subdivision Plan of Section C of "Creek View Heights,"
as recorded in the Cumberland County Office of the Recorder of Deeds in Plan Book 25, Page
49. The property is a corner lot located in the northeast quadrant of the intersection of
Cumberland Drive and Circle Road. When the Appellants purchased the property, it had been
improved with a residential dwelling facing Circle Road and a block and wooden shed
approximately eight feet wide, twelve feet long, and six feet high. The rear wall of this shed was
located in close proximity to the eastern (rear) property line. In 1993, the Appellants constructed
a six foot high privacy fence along a portion of the northern and rear property lines.
In Fall 2004, the Appellants sought to replace the block and wooden shed with a newer
and larger shed. Mr. Keiser contacted Ryan Hovis, who was then the Assistant Codes
Enforcement Officer for North Middleton Township, to discuss the construction of the new shed.
Mr. Keiser inquired about the necessity of a buildin permit but did not inquire about the
necessity of a zoning permit. Mr. Hovis advised Mr. Keiser that a building permit would not be
required for construction of an accessory structure, such as a shed, with an area of 1,000 square
feet or less and that the shed could not be located within the front yard of the property.
In Fall 2004, the Appellants dismantled the existing shed, and in Spring 2005, Appellants
constructed the new shed. The new shed is located within two feet of the rear property line.
Section 204-16.F(2)(c) North Middleton Township Zoning Ordinance of 1997 provides that
accessory structures must be set back a minimum of ten feet from the rear property line. The
4
Appellants' property slopes from front to back dropping approximately twelve feet over a total
distance of approximately one hundred thirty-three feet. In May 2007, sand from the Appellants'
property washed onto the Interveners' property during a heavy rainstorm. In March 2008, the
North Middleton Township Codes Department received a complaint from Denise Wells, owner
of the property adjoining Appellants' property on the east, concerning the location of the
Appellants' shed. The Interveners oppose Appellants' application for the variance.
DISCUSSION
1. Scope o Review
Where the Court of Common Pleas does not conduct a hearing or receive additional
evidence that was not before the zoning hearing board, the applicable standard of review of the
zoning hearing board's determination is whether the zoning hearing board committed a manifest
abuse of discretion or an error of law in granting or denying the variance. An abuse of discretion
will be found only where the zoning hearing board's findings are not supported by substantial
evidence. Larsen v. Zoning Bd. of Adjustment of City of Pittsburgh, 672 A.2d 286, 288-89 (Pa.
1996); Sweeney v. Zoning Hearing Board of Lower Merion Twp., 626 A.2d 1147, 1150 (Pa.
1993); Valley View Civic Assoc. v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 1983).
If additional evidence is taken by the court, the court shall make its own findings of fact based on
the record below, as supplemented by any additional evidence. Wilson v. Plumstead Tp. Zoning
Hearing Bd., 894 A.2d 845, 849-50 (Pa.Commw.Ct. 2006).
II. Appeal of the Decision of the North Middleton Township Zoning Hearing Board
A. Criteria for Granting Variance
Appellants Michael T. Keiser and Kathy H. Keiser appealed the ZHB's decision,
contending that they are entitled to a variance whereby they would be allowed to continue to
5
maintain their existing shed at their property, within two feet of the eastern (rear) boundary line.
They disagreed with the ZHB's determination that they had not met the criteria for granting a
variance. They also disagreed with the ZHB's determination that they were not entitled to a
variance by estoppel. Having reviewed the record and after considering the applicable law, this
Court dismisses Appellants' appeal and affirms the findings of the ZHB.
In general, variances are only granted under exceptional circumstances, and an applicant
must satisfy all the criteria necessary for the grant of a variance. Pektor v. Zoning Hearing
Board of Williams Township, 671 A.2d 295, 298 (Pa.Commw.Ct. 1996). The Appellants must
prove the following four criteria to prove that they are entitled to a variance under the applicable
statute and ordinance:
(1) that an unnecessary hardship exists which is not created by the party seeking the
variance and which is caused by unique physical circumstances of the property for
which the variance is sought;
(2) that a variance is needed to enable the party's reasonable use of the property;
(3) that the variance will not alter the essential character of the district or
neighborhood, or substantially or permanently impair the use or development of
the adjacent property such that it is detrimental to the public's welfare; and
(4) that the variance will afford the least intrusive solution.
Larsen, 672 A.2d at 289.
1. Unnecessary Hardship Caused by Unique Physical Characteristics
Appellants contend that the reason that the shed was constructed in its present location
was to maximize the area of the rear yard for family activities. In Larsen v. Zoning Bd of
Adjustment of City of Pittsburgh, 672 A.2d 286, (Pa. 1996) the appellants had sought a variance
to create a larger play area for their child. The Supreme Court of Pennsylvania found that a
party's need for a larger family area did not warrant the granting of a variance. Id. at 287-88.
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Likewise, in the instant case, the Appellants' mere desire to provide more yard room for their
family members' enjoyment fails to constitute the type of unnecessary hardship required by law
for the granting of a variance. Nor is such a desire a substantial, serious, and compelling reason
for a variance to be granted. Pektor v. Zoning Hearing Board of Williams Township, 671 A.2d
295, 298. In addition, the evidence has shown that, contrary to the Appellants' argument, their
choice to place their shed within the required setback was not caused solely by the irregular
shape and slope of their corner lot property. The property's physical characteristics which
minimized their available rear yard space are largely self-created. The Appellants, after
purchasing their property, expanded the deck and enclosed a porch, thereby minimizing their rear
yard space. This self-created condition is not a unique physical characteristic that would
necessitate locating the shed within the setback, and it does not inflict any unnecessary hardship
upon the Appellants. The Appellants have failed to demonstrate that the topography of their rear
yard would prevent the construction and placement of the shed in a location that would not
violate the setback requirement. This Court has given its fullest consideration to the ZHB's
findings and concludes that they were supported by the weight of the evidence.
2. Variance Needed to Enable Reasonable Use of the Property
The Appellants have resided at their property since 1988. They have made reasonable
use of this property for twenty years, using it for the purpose for which it was intended, as a
single family residence. They were able to use the property as a single family residence even
before the replacement of the original shed. A variance is not necessary to enable the
Appellants' continued reasonable use of their property.
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3. The Effect of the Variance on the Neighborhood
The ZHB found as a fact that in its current location, the Appellants' shed contributed to
increased water flow onto the Interveners' property. Mr. Wells had testified that erosion under
the fence line has gotten worse since the Appellants' shed was constructed, and he also testified
that the current slope was not present before construction of the shed. The ZHB properly
considered all of the testimony and found that the weight of the evidence supported the
conclusion that the location of the new shed within the setoff and the increased size of the new
shed contributed to an increased concentration of water runoff onto the Interveners' property.
Common sense would seem to dictate that the creation of 192 square feet of impervious surface
within 2 to 3 feet of an already downward slope is going to concentrate additional water runoff
onto the Wells property. This Court will not disturb the ZHB's findings absent a manifest abuse
of discretion in refusing to grant the variance.
4. Variance Must Afford the Least Intrusive Solution
The Appellants have failed to demonstrate that granting the variance would afford the
least intrusive solution in this matter. On the contrary, the evidence shows that the least intrusive
solution would be to simply move the shed to comply with the ordinance. The Appellants
admitted, and the ZHB found as a fact, that the shed could be moved to a point in the Appellants'
backyard that would be outside of the setback and would not violate any part of the zoning
ordinance. The shed does not even have a permanent foundation; its foundation consists of
concrete blocks that were salvaged from the original shed. Because the shed does not have a
permanent foundation, it does not appear that the Appellants would incur any unnecessary
hardship in relocating the shed. They could just move the shed to comply with the ten foot
setback requirement, and no destruction and reconstruction of the shed would be required.
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B. Appellants Have Not Demonstrated They Are Entitled to Variance by Estoppel
The Appellants argue that they are entitled to variance by estoppel. Variance by estoppel
is an unusual remedy that is only granted in the most extraordinary cases. Skarvelis v. Zoning
Hearing Board of Dormont, 679 A.2d 278, 281 (Pa.Commw.Ct 1996). Property owners whose
use of a property that does not conform to a zoning ordinance can establish variance by estoppel
if they meet their burden of establishing the following:
(1) a long period of municipal failure to enforce the law, when the municipality knew
or should have known of the violation, in conjunction with some form of active
acquiescence in the illegal use;
(2) the landowner acted in good faith and relied innocently upon the validity of the
use throughout the proceeding;
(3) the landowner has made substantial expenditures in reliance upon his belief that
his use was permitted; and
(4) denial of the variance would impose an unnecessary hardship on the applicant.
Borough of Dormont v. Zoning Hearing Board of the Borough of Dormont, 850 A.2d 826, 828
(Pa.Commw.Ct. 2004). The Appellants contend that they are entitled to a variance based upon
actions and/or inactions by the Township, their reliance on the Township's position, and the
Appellants' exercise of good faith in the instant case.
The Appellants' main arguments in support of these contentions center upon a 2004
conversation between Mr. Keiser and Mr. Hovis and the presence of other sheds in the
neighborhood that supposedly are not in compliance with the zoning ordinance. In regards to the
2004 conversation, the Appellants argue that the Township, through Mr. Hovis, affirmatively
represented that only a building permit was needed to construct the shed. However, the record
does not support this argument. Mr. Keiser testified that Mr. Hovis informed him that a building
permit would not be required for a shed under 1,000 square feet in size and that the shed could
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not be located in the front yard. When the original shed was torn down and the new one was
constructed, a zoning permit also was required, and the 1997 setback requirement was in force.
The record shows that Mr. Keiser only asked about the building permit and that the Appellants
did not apply for a zoning permit before replacing their shed. The record does not show that Mr.
Hovis specifically informed the Appellants that no zoning permit was required, and this Court
does not find any evidence in support of an implied affirmative representation by Mr. Hovis or
the Township that the Appellants would not need to apply for a zoning permit before replacing
their shed. Furthermore, Mr. Keiser testified that he has been employed in municipal
government for approximately thirty years, and he wanted to qualify as an expert in matters of
subdivision, zoning, and code issues. The ZHB did not abuse its discretion in factoring in his
knowledge of these matters when it considered his testimony in regards to the permits required
for setback issues, and therefore, the good faith nature of any actions he took in approaching the
Township prior to the replacement of his shed.
The Appellants argue that they have proof of twenty-three other sheds in violation of the
setback in the neighborhood, and that this supposedly inconsistent enforcement demonstrates that
there is no harm to the neighborhood and that they are entitled to variance by estoppel. Even if
this were true, the Pennsylvania Supreme Court, in the Pronesti case, stated that failure to
uniformly enforce an ordinance does not preclude subsequent enforcement of the same
ordinance. Ridley Township v. Pronesti, 244 A.2d 719, 721 (Pa. 1968). As the Appellants
themselves admit, their shed, in its present location, is in violation of the setback requirement.
Even if there are other properties in the neighborhood with sheds that violate the setback
requirement, it is proper to enforce the ordinance against the Appellants. Furthermore, the ZHB
properly weighed this testimony, in light of the fact that the Appellants did not testify as to the
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location of the sheds in regards to the setback requirements or to when the sheds were
constructed in relation to the establishment of the zoning ordinance.
Lastly, the evidence shows that denial of the variance would not subject the Appellants to
unnecessary hardship. Relocation of the shed to comply with the ordinance would only decrease
the yard space available for family activities, which, as we previously determined, was not a
compelling reason to grant the variance. The Appellants also argue that denying the variance
and enforcing the ordinance would result in a monetary hardship. The record shows that the
shed is not built on a permanent foundation, and the Appellants even testified that the shed could
be moved to another spot in the rear yard in order to be in compliance with the zoning ordinance.
In Vaughn, the Commonwealth Court of Pennsylvania found an extraordinary situation that
required variance by estoppel. In that case, the applicants had met their burden in establishing
the four factors for variance by estoppel. Vaughn v. Zoning Hearing Board of the Township of
Shaler, 947 A.2d 218, 225 (Pa.Commw.Ct. 2008). The applicants in that case demonstrated that
enforcement of the ordinance would result in unnecessary hardship in regards to expenditures:
enforcement would require an additional $20,000 in expenditures and removal of the structure in
question. In the instant case, there is no evidence that Appellants will have to remove the shed
and rebuild it; on the contrary, the Appellants can simply move the shed. Furthermore, there is
no evidence that they will incur significant expenditures in relocating the shed.
The evidence demonstrates that the Appellants have not met their burden of proving that
they are entitled to variance by estoppel. As the evidence and sound reasoning supports the
ZHB's findings of fact, this Court affirms those findings.
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CONCLUSION
Having considered the testimony and evidence presented by both parties, this Court finds
that the decision of the North Middleton Township Zoning Hearing Board to deny the variance is
not a manifest abuse of discretion and should be awarded the fullest consideration. The
Appellants' appeal of the ZHB's decision will be dismissed.
Accordingly, the following order will be entered:
ORDER OF COURT
AND NOW, this gth day of January, 2009, the Honorable J. Wesley Oler, Jr., having recused
himself from consideration of this case, upon review of the Land Use Appeal of Michael and Kathy
Keiser from a decision by the North Middleton Township Zoning Hearing Board, and after
consideration of the briefs filed by the parties and argument;
IT IS HEREBY ORDERED AND DIRECTED that the appeal of Appellants Michael T.
Keiser and Kathy H. Keiser is DISMISSED and that the decision of the North Middleton Township
Zoning Hearing Board is AFFIRMED.
By the Court,
t1w -L ??A
M. L. Ebert, Jr. .
Hubert X. Gilroy, Esquire
Attorney for Appellants
Michael R. Rundle, Esquire
Attorney for Appellee
Victor A. Neubaum, Esquire
Attorney for Interveners
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