HomeMy WebLinkAbout08-5401AMBASSADOR HOME
IMPROVEMENTS, INC.
V.
Appellant
THE ZONING HEARING BOARD OF
HAMPDEN TOWNSHIP,
Appellee
NOTICE OF LAND USE APPEAL
No. 0 ?F-' ?;-41Df ,? ; I fcc,w
Ambassador Home Improvements, Inc., Appellant, appeals from the decision of the Zoning Hearing
Board of HampdenTownship, Pennsylvania, in support thereof states the following:
1. The Appellant, Ambassador Home Improvements, Inc., is a Pennsylvania corporation with a
place of business at 4850 Carlisle Pike, Mechanicsburg, Pennsylvania.
2. The Appellee, The Zoning Hearing Board of Hampden Township, has an address of 230
South Sporting Hill Road, Mechanicsburg, Pennsylvania 17050.
3. The property which is the subject of this Appeal is 4850 Carlisle Pike, Mechanicsburg,
Hampden Township, Cumberland County, Pennsylvania.
4. On April 29, 2008, the Assistant Zoning Officer of Hampden Township issued a Notice of
Violations citing the Appellant for storage of contractor equipment on the subject property in alleged violation
of Section 1303 of the Hampden Township Zoning Ordinance and an alleged violation of Certificate of Use
No. 1524.
5. On May 23, 2008, Appellant filed an Appeal from the decision of the Assistant Zoning Officer
with the Zoning Hearing Board of Hampden Township.
6. The Zoning Hearing Board denied the Appellant's Appeal in a written decision dated August
25, 2008, pursuant to a vote taken at a public meeting on July 16, 2008. A copy of the Decision is attached
hereto as Exhibit "A."
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
7. The action of the Zoning Hearing Board of Hampden Township in denying the Appeal is
arbitrary, capricious and an abuse of discretion in contrary to law in that:
A. The Board erred in not concluding that the presence of the vehicles in question (6
trailers) on the site are permitted as an accessory use customarily and incidental to permitted use of
the Appellant as a commercial use serving the community similar to a glass shop or paint or paper
hanging shop.
B. The Board erred in concluding that the Appellant is a contractor and that the
Appellant's vehicles in question were equipment, said terms not being defined under the Zoning
Ordinance. In the event that either conclusion is erroneous, then the Board's conclusion that the
vehicles constituted contractor's equipment is erroneous.
C. The Board erred in not concluding that the Appellant had a vested right to operate the
Appellant's business in accordance with the uses and activities described in the Appellant's
Applications for a Certificate of Use and a Building Permit, which the Appellant filed with the
Township, and which permits were issued by the Township.
WHEREFORE, Appellant requests that the Court reverse the action of the Zoning Hearing Board and
determine that the storage on the site of the vehicles in question used by the Applicant are a permitted use in
the C-L Zone.
Respectfully submitted,
Date: -45? pit,-, 1, 4 &U?"
:342981v2
JOHNSON, DUFFIE, STEWART & WEIDNER
BY:
Richard W. Stewart
Johnson, Duffie, Stewart & Weidner
301 Market Street
Lemoyne, Pennsylvania 17043
717-761-4540
Attorney ID No. 18039
Attorneys for Appellant
2
OPINION OF THE ZONING HEARING BOARD
OF HAMPDEN TOWNSHIP
CUMBERLAND COUNTY, PENNSYLVANIA
SAIDIS,
SOWER &
LINDSAY
AT'row&'Yseruw
26 West High Street
Carlisle, PA
APPLICANT:
AMBASSADOR HOME IMPROVEMENTS, INC.
LOCATION OF PROPERTY:
OWNER:
4850-4956 CARLISLE PIKE
MECHANICSBURG
HAMPDEN TOWNSHIP
HAMPDEN CENTER, INC.
08 - 06
DOCKET NUMBER:
EXHIBIT "A"
HAMPDEN TOWNSHIP ZONING HEARING BOARD
In the matter of: 4850-4956 Carlisle Pike, Mechanicsburg
Appeal No. 08-06
This case comes before the Hampden Township Zoning Hearing Board upon the
application of Ambassador Home Improvements, Inc., appealing a decision of the Zoning
Officer, pursuant to Section 2201.(B). of the Hampden Township Zoning Ordinance.
After notice duly given as required by the provisions of the Zoning Ordinance, a
hearing was held before the Hampden Township Zoning Hearing Board at the Township
building at 230 Sporting Hill Road, Mechanicsburg, Pennsylvania at 7:30 p.m. on Wednesday,
July 16, 2008. In accordance with the provisions of the Zoning Ordinance, notice of the
hearing was given to the applicant, the zoning officer, to any persons requesting notice, and
public notice was given in the manner prescribed by the Municipalities Planning Code, the
Hampden Township Zoning Ordinance and the rules of the Board.
The record of this case consists of the original application, the testimony of Mr. Joseph
Zisman, president of Ambassador Home Improvements, Inc. and Mr. Jonathan Powers,
Assistant Director of Codes Enforcement for Hampden Township, along with the following
exhibits marked A-1- A-8 and T-1- T-7:
A-1 is a sales brochure for the Owens Corning Basement Finishing System;
A-2 is a sales brochure for Renewal by Anderson window replacement;
SAIDIS,
FLOWER &
LINDSAY
erroxrMAT-uw
26 West High Street
Carlisle, PA
A-3 is a fabric wall-covering sample;
A-4 is a sales brochure for Glass Masters, a rival basement finishing and window
replacement company operating in the C-L zoning district;
2
A-5 - A-7 are photographs of basement finishing and window replacement materials
stored within the Applicant's building;
A-8 - A-10 are photographs of the show room portion of the Applicant's building;
T-1 is a copy of the Notice of Violation dated April 29, 2009, issued to the Applicant by
Mr. Darrell McMillan, Director of Codes Enforcement and Assistant Zoning Officer for
Hampden Township;
T-2 is the Applicant's October 23, 2007 Application for Plan Examination and Building
Permit with respect to the Applicant's tenant alterations to the subject property;
T-3 is a letter dated November 19, 2007 from Ivan Miller, Township Plan Reviewer,
addressed to Barry Cassel, of W.S. Miller Sons, specifying information required for the
Building Permit Application, with respect to the Applicant's tenant alterations to the subject
property;
T-4 is letter dated November 16, 2007 from Mr. Joseph Zisman to Barry Cassell,
concerning the Applicant's tenant alterations to the subject property;
T-5 is the Certificate of Use issued to the Applicant October 29, 2007 for "Showroom
and Associated Offices" noting "STORAGE OF CONTRACTOR EQUIPMENT OR
MATERIALS NOT PERMITTED," with the Applicant's Certificate of Use Application
attached;
T-6 is the Applicant's March 25, 2008 supplemental Application for Plan Examination
SAMIS,
FLOWER &
LINDSAY
26 West High Street
Carlisle, PA
and Building Permit for a new loading dock addition; and
T-7 (A - J) is a set of ten photographs taken April 18, 2008 showing the Applicant's
trailers and vans parked at the subject property.
3
Findings of Fact
The board makes the following findings of fact:
SAIDIS,
IJOWER &
LINDSAY
26 West High Street
Carlisle, PA
1. The Applicant is Ambassador Home Improvements, Inc., of 4850 - 4856 Carlisle Pike,
Mechanicsburg, PA 17050.
2. The owner of the subject property is Hampden Center, Inc, of 444 Park Avenue South
302, New York, NY 10016.
3. The subject property is in the C-L (Commercial-Limited) zoning district.
4. Mr. Joseph Zisman, the president of Ambassador Home Improvements, Inc., testified
that the Applicant company is a family-owned business started in 1947 and incorporated in
1978, which employs 40 - 45 people and was located on Front Street in Harrisburg, before
moving to its current location.
5. The Applicant's facility on the subject property covers a total area of 23,000 square
feet, with 5,000 - 6,000 square feet devoted. to inside storage of inventory, and the balance
comprising a show room and offices.
6. Prefabricated materials to fill customer orders for replacement windows or basement
retrofitting systems are shipped from the factory to the subject property.
7. The materials to be installed are typically held in storage at the property for a day to a
week, before being loaded onto the Applicant's trailers, usually on the day of delivery, and
taken to the customer's home for installation.
8. The Applicant uses six trailers for transporting materials from the store on the subject
property to customers' homes and has three employee installers and nine to twelve sub-
contractor installers.
9. The installation process for the Applicant's window replacement and basement
finishing systems does not include new framing, and no jack hammers, front-end loaders or
4
similar heavy equipment is employed; most work is done with screw guns, caulking guns and
SAIDIS,
;LOWER &
LINDSAY
AMRNEr,AT 1Aw
26 West High Street
Carlisle, PA
occasionally saws for sizing windows.
10. Generally, the Applicant's installers carry their own tools, which would not be stored in
the Applicant's trailers, and the Applicant's Window Renewal van contains parts and tools for
service only.
11. The Applicant expended $429,000 for alterations to the subject property.
12. The Applicant's October 23, 2007 Application for Plan Examination and Building
Permit describes the proposed use as "offices/showroom."
13. The Applicant's Certificate of Use Application dated May 15, 2007 states that "the
primary use of the building ... is for offices for the company's sales and administrative staff....
[and] there is no outside storage."
14. The Certificate of Use No. 1524 issued to the Applicant on November 19, 2007 states:
"THIS PERMIT ALLOWS USE AS A SHOWROOM FOR REPLACEMENT WINDOWS
AND BASEMENT FINISHING SYSTEMS WITH SUPPORTING OFFICE AND
ADMINISTRATIVE USES. OFFICE USE ONLY-STORAGE OF CONTRACTOR
EQUIPMENT OR MATERIALS NOT PERMITTED."
15. Mr. Jonathan Powers, Assistant Director of Codes Enforcement for Hampden
Township, identified the Township's Exhibits T-1 - T-7.
16. Mr. Powers conceded that there is no prohibition in the Zoning Ordinance against the
storage of inventory on the property, and that the Ordinance does not define the term
"contractor."
17. Section 1303. ("Permitted Uses") of the Zoning Ordinance, at subsection L., permits
within the C-L zoning district various "commercial uses serving the community...."
5
18. Section 1303. does not permit the storage of contractor's equipment in the C-L zoning
SAIDIS,
9LOWER &
LINDSAY
AMWgMATIAW
26 West High Street
Carlisle, PA
district; storage of contractor's equipment is only permitted in the I-G (Industrial General)
zoning district, pursuant to Section 1503.L.
19. On April 29, 2008, Darrell L. McMillan, Director of Codes Enforcement and Assistant
Zoning Officer, issued a Notice of Violation citing the Applicant for storage of contractor's
equipment on the subject property, in violation of Section 1303. of the Zoning Ordinance and
in violation of Certificate of Use No. 1524.
20. The Applicant now appeals from the determination of the Zoning Officer pursuant to
Section 2201.B.
Conclusions of Law
1. The matter is properly before the Hampden Township Zoning Hearing Board, proper
notice having been given to all interested parties and the Board having jurisdiction to hear the
appeal.
2. Section 1303. ("Permitted Uses") of the Zoning Ordinance, at subsection L., permits
within the C-L zoning district various "commercial uses serving the community.... [and]
accessory uses on the same lot with and customarily incidental to any ... permitted uses."
3. Section 1303. does not permit the storage of contractor's equipment in the C-L zoning
district; storage of contractor's equipment is only permitted in the I-G (Industrial General)
zoning district, pursuant to Section 1503.L.
4. Section 2209.1. provides that "[a] certificate of use shall be a written statement by the
Zoning Officer, or his duly appointed representative, setting forth ... that a building or structure
lawfully may be employed for specified uses under the provisions of the Zoning Ordinance.
5. Section 2201.B. provides the right to appeal to this Board from a decision of the Zoning
Officer.
6
Discussion
The Applicant sells to consumers, then transports and installs replacement windows and
basement retrofitting systems, through employees and subcontractors. The Applicant keeps six
trailers on the site, which it uses to store and transport its replacement windows and basement
system materials. The Certificate of Use issued to the Applicant states prominently that
"storage of contractor equipment or materials [is] not permitted," and the Applicant's own
Certificate of Use Application states that there shall be "no outside storage." The Applicant
emphasizes that its installation process involves no new framing, and requires no heavy
construction equipment. It also argues that the use of trailers to store and transport its
inventory to customers is permitted as an accessory use. Nevertheless, because the Applicant
contracts with consumers to install its windows and basement retrofitting systems, it must be
considered a contractor. The trailers used by the Applicant to store and transport materials to
consumer's homes for installation must be considered equipment. The Board agrees with the
Zoning Officer's determination that the presence on the site of the six trailers used by the
Applicant to store and transport materials to consumer's homes for installation constitutes the
storage of contractor's equipment on the subject property, which is not a permitted use in the
C-L zone.
Decision
On motion duly made by Mrs. Keren Roberts and seconded by Mr. James Rendler, it
SAIDIS,
SOWER &
LINDSAY
ATT0MEr,A71Aw
26 West High Street
Carlisle, PA
is:
RESOLVED, that the Zoning Hearing Board upholds the April 29, 2008 determination of the
Zoning Officer, finding that the Applicant has violated the Certificate of Use and the Zoning
Ordinance.
(Motion carved unanimously.)
7
Dated: July 16, 2008 Hampden Township Zoning Hearing Board
B
Eugene Baldwin, Chairman
By: Absent
David R. Hams
By: Absent
Michael J. Kane
By: &P.?eu
I eren E. Roberts
By: Absent
Josei)h G. Porter 1
James Rendler
Date Mailed: August 25, 2008
SAIDIS,
FLOWER &z
LINDSAY
ATWRNM ATtiuW
26 West High Street
Carlisle, PA
8
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Ambassador Home Improvements, Inc.
4850 Carlisle Pike
Mechanicsburg, PA 17050
Vs.
No. 08-5401 CIVIL TERM
The Zoning Hearing Board of
Hampden Township
230 South Sporting Hill Road
Mechanicsburg, PA 17050
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA) :
SS.
COUNTY OF CUMBERLAND)
TO: The Zoning Hearing Board of Hampden Township,
We, being willing for certain reasons, to have certified a certain action between
Ambassador Home Imporvements, Inc. v. The Zoning Hearing Board of Hampden
Township 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 (twenty) 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
11th day of September.
/S L " Y07'A
Curtis R. Long, Prothonot 1yry
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SADOR HOME
iEMENTS, INC.,
Appellant
V.
ZONING HEARING BOARD OF
HAMPDEN TOWNSHIP,
Appellee
and
HAMPDEN TOWNSHIP,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2008-5401
: CIVIL TERM
LAND USE APPEAL
NOTICE OF INTERVENTION
TO THE PROTHONOTARY:
Hampden Township hereby intervenes in the above Land Use Appeal pursuant to
§ 1004-A of the Pennsylvania Municipalities Planning Code, 53 P. S. § 11004-A.
SNELBAKER & BRENNEMAN, P. C.
Date: September 16, 2008
BY:
Keith O. Brenneman, Esquire
44 W. Main Street
Mechanicsburg, PA 17055
(717) 697-8528
Solicitor for Hampden Township
LAW OFFICES
SNELBAKER &
BRENNEMAN, P.C.
i
CERTIFICATE OF SERVICE
I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date,
caused a true and correct copy of the foregoing Notice of Intervention to be served upon the
person and in the manner indicated below:
FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS:
Richard W. Stewart, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
Lemoyne, PA 17043
Attorney for Appellant
Robert C. Saidis, Esquire
26 West High Street
Carlisle, PA 17013
Solicitor for Hampden Township
Zoning Hearing Board
SNELBAKER & BRENNEMAN, P.C.
By: 1
LAW OFFICES
SNELBAKER & Date: September 16, 2008
BRENNEMAN, P.C. 11
Keith O. Brenneman, Esquire
Pa ID No. 47077
44 W. Main Street
P. O. Box 318
Mechanicsburg, PA 17055
(717) 697-8528
Solicitor for Hampden Township
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AMBASSADOR HOME
IMPROVEMENTS, INC.
V.
Appellant
THE ZONING HEARING BOARD OF
HAMPDEN TOWNSHIP,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 08-5401 Civil Term
PRAECIPE
Please withdraw the appeal of Ambassador Home Improvements, Inc. with regard to the above-
captioned matter.
Date: /?': t r Gcgc
JOHNSON, DUFFIE, STEWART & WEIDNER
BY:
Richard W. Stewart
Johnson, Duffie, Stewart & Weidner
301 Market Street
Lemoyne, Pennsylvania 17043
717-761-4540
Attorney ID No. 18039
Attorneys for Appellant
362427
Fl'LFi'rZri-f ,?;E
OF THE PP?'ay"' 1OTAPY
2009 APR - 6 PM 2.55
PENNSYLVANIA