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Home My WebLink About08-6173c , TONY PATACCONI, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. THE BOROUGH OF NEW CUMBERLAND : ZONING HEARING BOARD, CIVIL ACTION -LAW Defendant NOTICE OF APPEAL 1. Appellant, Tony Patacconi, is an adult individual residing at 109 Rosemont Drive New Cumberland, PA 17070. 2. Appellee is the Borough of New Cumberland Zoning Hearing Board. It has an address of 1120 Market Street, P.O. Box 220, New Cumberland, PA 17070. 3. The determination subject to appeal pursuant to the Pennsylvania Municipalities Planning Code is the decision of the Borough of New Cumberland Zoning Hearing Board denying a request for variance by Appellant relative to construction of a roofed porch. 4. The Zoning Variance request concerned §202.2 of the New Cumberland Zoning Ordinance. Said Section states: a 202.2 Area and Bulk Regulations - The following regulations shall be observed for each lot: Maximum Regulations Building Height 35 feet Building Coverage 30 percent Building plus paved coverage 40 percent Minimum Regulations Building Setback Line 25 feet Lot Area 5,000 sq ft Lot Width - street frontage 50 feet Open Area 70 percent Rear Yard 5 feet Side Yard 5 feet 5. 6. 7. 8. The request of the Appellant was to construct a roofed front porch within seventeen feet nine inches (17'9") of Rosemont Avenue instead of twenty-five feet (25') as required by the Ordinance. On September 16, 2008, a hearing was held before the Borough of New Cumberland Zoning Hearing Board to address Appellant's Application for Variance relating to the construction of a roofed front porch on Appellant's residence. The proposed deviation from the set back is de minimis in nature and rigid compliance with the ordinance is not necessary to preserve public policy. Substantial evidence was also introduced of record to show that while the 2 construction of the actual houses existing on Rosemont Avenue were in compliance with the twenty-five feet (25') set back, many neighbors had stoops, steps and even larger porches than proposed by Appellant Patacconi's erected and extending into the twenty-five foot (25') right-of-way. 9. On or about September 19, 2008, the Borough of New Cumberland Zoning Officer, David I Milletics, advised Mr. Patacconi that the Application for Variance was denied by the New Cumberland Borough Zoning Hearing Board. A true and correct copy of this letter is attached hereto as Exhibit "A." 10. The Board objected to the installation of a roof but allowed the porch surface to remain in the twenty-five foot (25') right of way. 11. A decision of the Zoning Hearing board was issued on September 30, 2008. This decision is attached as Exhibit "B." 12. On September 23, 2008, A Zoning Permit was issued for the porch dated September 23, 2008. A copy of the Permit is attached as Exhibit "C." 13. The Board erred and abused its decision in not allowing a variance for 3 construction of a roofed porch for the following reasons: a. The decision is arbitrary and capricious in light of the substantial evidence existing as to the existence of roofed porch structures along Rosemont Avenue which exist on many fronts of the houses in the twenty-five foot (25') set back. b. The decision to allow a porch to be erected on the ground in the actual twenty-five foot (25') set back but deny the right to cover the porch with a roof has no reasonable basis in law and fact. The construction of a roof at a higher elevation would be less intrusive and provide less impact into the twenty-five feet (25') set back. c. The Board made an error of law in not granting the variance in accordance with 53 P.S. 10910.2 and New Cumberland Ordinance 704. 1, et. seq. The construction of the roof will not negatively effect the health, safety and general welfare of the community or alter the essential character of the neighborhood or permanently impair the appropriate use or development of any adjacent property. In this situation, the construction would actually improve the aesthetics of the neighborhood by making Appellant's porch consistent with the existing porches, improve property values, allows optimum use by Appellant of the property. Failure to allow same is a hardship to Appellant. 4 14. This Court has appellate jurisdiction over this matter pursuant to 53 P.S. §11002-A. WHEREFORE, Appellant respectfully requests that this Honorable Court reverse the determination of the Borough of New Cumberland Hearing Board as a result of the September 16, 2008 hearing, and grant the right to construct the roof. Dated: October 16, 2008 (717) 774-1445 Supreme Court ID: 32317 Attorney for Petitioner 5 549 Bridge Street New Cumberland, PA 17070 Exhibit A BopouM of Nm Cumherqmd 1 120 MARKET STREET P.O. BOX 220 NEW CUMBERLAND, PA 17070 PHONE: 774-0404 FAX: 774-8163 September 19, 2008 Tony Patacconi 109 Rosemont Avenue Parcel #: 25-25-0006-401 New Cumberland, PA 17070 Re: Zoning Hearing Board Decision: Dear Mr. Patacconi: This letter is to inform you that your Application for a variance was denied by the New Cumberland Borough Zoning Hearing Board. The frame work of the roof that you have constructed must be removed and further work for a porch roof will not be permitted. The Zoning Hearing Board in their decision process did not have issue with the larger porch surface that was constructed to support the proposed roof therefore this may remain as is. Should you have any questions in regards to the decision or any other matter please contact our office. }Respectfully, David J. M' letics Zoning Officer EXHIBIT "B" I` r IN RE: BEFORE THE NEW CUMBERLAND ZONING APPLICATION OF HEARING BOARD TONY PATACCONI CASE NO. 08-03 DECISION OF THE ZONING HEARING BOARD The Applicant has requested a variance from the twenty-five foot (25') setback requirements of Section 202.2 of the New Cumberland Borough Zoning Ordinance (hereinafter "Ordinance") to allow him to erect a porch that will be setback seventeen feet nine inches (17' 9") from Rosemont Avenue. A hearing on the request was held on September 16, 2008. FINDINGS OF FACT 1. The Applicant is Tony Patacconi. 2. The Applicant is the owner of the subject property. 3. The subject property is located at 109 Rosemont Avenue in the Borough of New Cumberland. 4. Notice of the Hearing was posted on the property and all property owners and other parties required to be notified of the Hearing were notified in accordance with the terms of the Ordinance. 5. The property is improved with a single family dwelling house. 6. The Applicant has requested a variance from Section 202.2 of the Ordinance to allow him to erect a porch within seventeen feet nine inches (17' 9") of Rosemont Avenue instead of twenty-five feet (25') as required by the Ordinance. 7. Reasonable use of the property can be made without the granting of the variance. 1 r CONCLUSIONS The enforcement of the front yard setback requirements of Section 202.2 of the Ordinance does not inflict an unnecessary hardship upon the Applicant. DECISION It is the decision of the New Cumberland Zoning Hearing Board that the Applicant's request for a variance from the front yard setback requirements of Section 202.2 of the Ordinance be denied. The Applicant has not demonstrated that the enforcement of the Ordinance would create an unnecessary hardship required under the law to justify the granting of a variance. The Board cannot grant a variance where, as in the present case, only personal inconvenience is involved. There must be something unique about the property which would make the enforcement of the Ordinance an unnecessary hardship. In the Kline Zoning Case, 395 A.2d 122 (1959), a property owner asked for a variance of three and one-half (3 ''V2') from the building setback line to allow him to build an enclosed porch for the comfort of his asthmatic wife and son. The Pennsylvania Supreme Court held that the Zoning Board properly denied the request for a variance because the showing of personal hardship is insufficient. The Borough Council enacted the setback requirements knowing full well people might wish to build a structure closer to the street for many reasons. This requirement does not impose any hardship upon the Applicant that was not contemplated by the Borough Council when it enacted the Ordinance. There is nothing about the property that prevents it reasonable use and conformity with the Ordinance. Thus, the Board has no basis for the granting of a variance because the requirements of Section 704 of the. Ordinance and Section 910.2 of the Municipalities Planning Code have not been met. NEW CUMBERLAND ZONING HEARING BOARD BY: Dated: September 30 , 2008 :344849 2 EXHIBIT "C" a C? ;moo w PC E U 0: 4 4no O bA O O ?M a 0 N Q t 0 r*141 IL N 0 z • O O v Icy 42 0 aA 0 ZZ v U o ? ? q . . V a? O N 0 0 0 F W H W !! V ?I O .ry O N A 0 0 N O O u 04 TONY PATACCONI, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. THE BOROUGH OF NEW CUMBERLAND : ZONING HEARING BOARD, CIVIL ACTION -LAW Defendant CERTIFICATE OF SERVICE I, Laura J. Hughes, Secretary to Barbara Sumple-Sullivan, Esquire, hereby certify that a true and correct copy of this Notice of Appeal, in the above-captioned matter upon the following by Certified Mail Return Receipt Requested, postage prepaid, addressed as follows: Certificate No. 7008 0150 0002 52891079 The Borough of New Cumberland Zoning Hearing Board 1120 Market Street P.O. Box 220 New Cumberland, PA 17070 Dated: October 16, 2008 Certificate No. 7008 0150 0002 52891109 Richard W. Stewart, Esquire Solicitor for Zoning Hearing Board Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Laura J. Hughes etary o Barbara Sumple ullivan, Es uire 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 U? C' F W R-- ? N t (7'f (c=-)) Z Z:7-1 --4 ,C F ` -+ i V G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TONY PATACCONI Vs. : No. 08-6173 CIVIL TERM BOROUGH OF NEW CUMBERLAND ZONING HEARING BOARD WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) SS. COUNTY OF CUMBERLAND) TO: BOROUGH OF NEW CUMBERLAND ZONING HEARING BOARD We, being willing for certain reasons, to have certified a certain action between TONY PATACCONI VS THE BOROUGH OF NEW CUMBERLAND 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 JUDGE our said Court, at Carlisle, PA., the 16TH day of OCTOBER 2008. /'2. Curt' R. Long, Pr otary Ln 0 m m OFF ICIXL USE o . ru Postage C] CertMed Fee m P M k C7 O Retum Recelpt Fee OS w Here (Endorsement RequlnxQ C3 Rest+iaed Delivery Fee Er (Er?ddxeetnent RequBed) m C3 Total Postage & Fees $ Lil 4 t i cll . ?x ? ;k .................... .. .. . .. vmw drrPABarzNbL .a .?._........ Cl 1 N O m co z CO ?r J W 47 2 N A s Q 1 v W RS !I 1. e?J P Q D? ? a .* ? •? .pig 0 O . N fU gwn ~' 0 n 4 9°> o C ? . D A t A w O ao )( P K Cl ?I Z 30 OCR d ` h 31HI d0 f O i G . -, ! H 00 $.A 0 w ° $ -, a a o LL ,? N sr? _ G N Gr c+ c? d c G 2 J 3 a- 0 3 to CL. G N N N • Z 7 NOV 13 20Ub 67 Johnson, Duffle, Stewart & Weidner By: Richard W. Stewart I.D. No. 18039 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 rws@jdsw.com Attorneys for Appellee TONY PATACCONI, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Appellant NO. 08-6173 Civil Term V. THE BOROUGH OF NEW CUMBERLAND ZONING HEARING BOARD, Appellee TABLE OF RECORDS 1. Copy of Application of Variance filed by Tony Patacconi 2. Copy of Public Notice sent to neighboring property owners 3. Copy of Proof of Publication of Public Notice of Hearing to be held on September 16, 2008 4. Copy of transcript of testimony of Hearing conducted on September 16, 2008 5. Letter dated September 12, 2008 from George S. Farner 6. Letter dated September 15, 2008 from Steven and Margie Stahl 7. Pictures taken September 15, 2008 8. Copy of Decision of the New Cumberland Zoning Hearing Board dated September 30, 2008 9. Copy of letter of New Cumberland Zoning Hearing Board from Robert R. Gentzel to Tony Patacconi dated October 6, 2008 transmitting the Decision of the New Cumberland Zoning Hearing Board 10. Copy of Notice of Appeal filed October 16, 2008 11. New Cumberland Borough Zoning Ordinance. :349305 APPLICATION FOR A HEARING BEFORE NEW CUMBERLAND ZONING HEARING BOARD The undersigned hereby makes application to the Zoning Hearing Board of New Cumberland for: (Please check relevant item below) Request for Variance =Request for Special Exception ? JUL 2 2 2008 /,Appeal from decision of Zoning Officer 2 t ,( F - 1 Challenge to the validity of the zoning ordinance or map '•=?' L a L 1. Names(s) of Applicant(s) , ?D.? y A7?A e c • .?. i Phone (H) 7>p--0'271- (W) 2. Mailing address of Applicant(s) /O /T-o to .11flew /-7;00 3. Address of Property subject to App 'cation 109 4. Present Use of Premises Proposed Use of Premises 5. Name of Property Owner, if other than Applicant (Address, if applicable) Phone (H) (W) 6. Lot Size 3 6x /o o Deed Description Zoning, District Parcel Number 7. Plot Plan attached t// Yes No 8. Reason for Application and requested relief: yt 5-?J.-,ee C -5 r p, -w ? ".., 'e. (Attach additional sheets, if necessary) *If applicant is not the owner of property, please include a letter of authorization signed by the owner or a copy of a sales agreement showing the applicant as the buyer. I hereby state that the facts set forth in this application are true and correct under penalty of the law. I further hereby acknowledge that I have paid the relevant application fee and that I desire that a hearing be scheduled in accordance with the reasons for this request. (Signatujjjh Applicant) (Date) (Signature of Owner if different from Applicant) (Date) (TO BE COMPLETED BY BOROUGH Application fee paid in amount of $ J 6 0, " Check No. 676 0 or Cash ATTEST: Zoning Officer Borough of New Cumberland Application No. (Date of Processing and Receipt of Application Fee) i SALLY M. PATACCONI 109 ROSEMONTAVENUE NFwriIMRFRIANf1 PA 17070 60-8134/2313 j 560 11 20 $oo,? Y 1:2 3 1:48 13 491: 0,20750170511' 056 (rte- 6FID M7rm non IL JUL 2 2 2008 To; New Cumberland Borough Zoning Board 1 t From: Tony Patacconi 109 Rosemont Avenue New Cumberland, Pa. 17070 (770-0776) Subject: Setback minimum of 25 feet from property line, ordinance #468 section 202.2 As you will see my set back is 17ft 9in from the outside of proposed porch roof to front property line. This board should be aware that on Rosemont Avenue and most streets in New Cumberland this set back has not been followed. 105 Rosemont, which is larger square footage porch has a 16 foot set back, and 103 Rosemont which is also a larger square footage porch is 15 feet, 6 inches from the front property line, please note that this porch was built only several years, supposedly with a permit, but did not adhere to the permit applied for, the homeowner told me this. The zoning board and others in the boro should be made aware of construction going on at 803 Rosemont, a shed of pole building construction in the rear yard and also the corner of Woodland and 2n street a small patio being constructed between the home and up to the sidewalk. I am making this request per the zoning officer, as a hardship request for relief from the ordinance, but I feel a precedence has been set throughout the boro with this regulation. Enclosed are pictures of my construction and similar porches between 109 and 103 Rosemont. Sincerely, Tony P acconi 1. Site Plan a. Lot Dimension: 100ft. x 501 (5000sq.ft.) b. Street/pavement/right-away: 50 ft frontage,Rosemont Avenue, 50 ft. frontage Boro Park. c. Existing structures: Shed,613in x l Oft(62.5sq.ft.),work shop,22ft6in x 12ft3in(275.6sgft.),rear porch,3ft6in x6ft5in(22.7sgft),house(1051 sgft), front porch,18ftl0in x 7ft5in(140.3sgft)total square footage 1552.1sgft. d. Proposed structure: Roof over existing porch, 20ft10in x8ft7in e. Distance: Project to each lot line.Porch roof to front boundary, 16ft7in,porch roof to 107 Rosemont, 12ft6in, proch roof to 111 Rosemont 18ft8in f. Property lines n/a g. Driveway n/a h. Utilities: water,gas,sewer located under porch. 2. Footing details:30in below grade 6in base of 2a modified,I8in wide compacted. 3. Foundation wall:6x6xl6in EP Henry retaining wall block,backfilled with 2a modified, floor are has 24 in of compacted 2a modified with 6x6 and 9x6 pavers. 4. ,5,6,&7 n/a 8. Roof construction: a. Rafters: 2x6, pine, premium grade, 16in on center(rafters will set on framed ceiling built of 2x6 on 16 in centers) b. Roof pitch: Gabled roof with 4/2 pitch, , covered with forest green galvanized panels. c. Roof trusses: built on site 2x6-16 in centers d. Roof cheating: 5/8 in exterior plywood e. Attic access: n/a f. Attic ventilation: 12in ventilated soffit on 3 sides, ceiling soffit ventilated and 24in x16in gable vent. g. n/a h. n/a u CJ G' 'Al f 1 r rf 0c f f ??Y ?i 6 V 'S 1 t 5 i x 4'd l--l$lil i y' 1 AG, a? a n 1-,?,J, ??JJ??•j V u r-4" g, 4 ?? 4 ?t 1 V 109 Rosemont 105 Rosemont 103 Rosemont NOTICE IS HEREBY GIVEN THAT THE NEW CUMBERLAND ZONING HEARING BOARD WILL HOLD A MEETING AT THE NEW CUMBERLAND BOROUGH HALL, 1120 MARKET STREET, NEW CUMBERLAND, PENNSYLVANIA, AT 7:00 P.M., ON SEPTEMBER 16, 2008, AT WHICH TIME A PUBLIC HEARING WILL BE HELD IN THE FOLLOWING MATTER: Case No: 08-03 Applicant: Tony Patacconi Property: 109 Rosemont Avenue, New Cumberland, Pennsylvania. The Applicant is seeking a variance from the front set back provision of Section 202.2 of the New Cumberland Zoning Ordinance to allow him to construct a porch roof 17 feet, 9 inches from the right-of-way line instead of 25 feet required by the Ordinance. The application and plan submitted by the Applicant may be examined by the public at the New Cumberland Borough Hall, the address set forth above, from 8:30 a.m. to 4:30 p.m. on weekdays. ALL INTERESTED PARTIES MAY APPEAR AND BE HEARD AT THE TIME SET FORTH ABOVE. NEW CUMBERLAND ZONING HEARING BOARD BY: Robert Gentzel, Chairman :341371 11/03/2008 08:31 7748163 NEWCUMBERLD PAGE 02 The Patriot-News Co. 812 Market St. Harrisburg, PA 17101 Inquiries - 717-255-8292 F= rte, r;= n n M r,-Z SEP 08 2008 ? Lw) 1?=, u u r? ?J NEW CUMBERLAND BOROUGH 1120 MARKET STREET P.O. BOX 220 NEW CUMBERLAND PA 17070 14C Patriot News Now you know /d/ 9 ? DATE E}f mcmD 13% .I ATE PAt4_ 19 Q AN1T APPEND CHECK # AC0T '# (S; ,., ilk Z?- CMEM WT PlArl".1 !k".0-F-111411 _. THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No, 687, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin) ss D Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Assistant Controller of The Patriot News Co,, a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place' of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the date(s) indicated below. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY Notary Public September, 2008 A.D. ?'yhJ h1r.?;1 E OF PENNSYU/p,Ntp aoNenaat *4g&l x?my Notary Public 4E "!afTmbJ 1, Damphin Cp ?Y COmh4k-om EXPIMg Nov. 26, 2011 b1drilDe?, F'a4neglvaeiw Aeaocletion o1 NetuUs This ad # 0001894722 ran on the dates shown below; August 28, 2008 September 04, 2008 r ........ wn fn afir}'?uher_rihPr) hafnra L tbi'c lld. Johnson, Duffle, Stewart & Weidner By: Richard W. Stewart I.D. No. 18039 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 rws@jdsw.com NOV 7 3 2008/ ?q Attorneys for Appellee TONY PATACCONI, Appellant V. THE BOROUGH OF NEW CUMBERLAND ZONING HEARING BOARD, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-6173 Civil Term TO THE HONORABLE, THE JUDGES OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA: The record of the above-referenced action with all things concerning said action, is hereby certified as being true and correct and is sent to the Court of Common Pleas of Cumberland County as commanded. NEW CUMBERLAND ZONING HEARING BOARD BV Robert R. Gentzel, Chair n :349304 BEFORE THE ZONING HEARING BOARD OF NEW CUMBERLAND BOROUGH . . . . . . . . . . . . . . RE: TONY PATACCONI No. 08-03 Before: Robert A. Gentzel, Chairman Harry A. Stutzman Richard W. Stewart, Solicitor David Milletics, Zoning Officer Date: September 16, 2008, 7:00 p.m. Place: 1120 Market Street New Cumberland, Pennsylvania By: Susan L. Petrilla, RPR Reporter - Notary Public ALSO PRESENT: TONY PATACCONI SALLY PATACONI JOHN POGGIO BAMBI NEVILLE - FILMS & MCLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN GENTZEL: This is the time and place set by the New Cumberland Zoning Hearing Board for a hearing on the application of Tony Patacconi. Is that the correct pronunciation? MR. PATACCONI: Yes, it is. I'm here. CHAIRMAN GENTZEL: I have a little more to read here into the record, so just bear with me. The purpose of the hearing is as follows: The applicant is seeking a variance from his front setback provisions, Section 202.2 of the New Cumberland Zoning Ordinance to allow him to construct a porch 17 feet, 9 inches from the right-of-way line, instead of 25 feet required by the ordinance. The application and plan submitted by the applicant has been available to the public in New Cumberland Borough Hall. This hearing is being transcribed by an independent public stenographer. The applicant will present his case first. Any member of the audience who desires or has questions of the applicant or any of the applicant's witnesses will have the opportunity to do so. Any member of the audience who wishes to give testimony or wishes to present evidence in opposition to the application will be given an opportunity to do so after the applicant has presented - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his case. The application filed by the parties and an affidavit of service indicating that notice of the hearing was given to the proper parties under the ordinance and Municipalities Planning Code will be admitted into the record at this time, unless there are any objections. There don't appear to be any objections. The applicant can now present his case. MR. PATACCONI: What I have -- I'm Tony Patacconi. My wife, Sally, back there in the back, we're the owners of 109 Rosemont. And -- MR. STUTZMAN: Mr. Patacconi, excuse me. Why don't you speak into the microphone. The acoustics in here are terrible, I'm sorry. MR. PATACCONI: What I have, I have two letters from two neighbors that gave them to me. I'll present them to the zoning board. And also two neighbors came with us tonight. I guess you already have the initial letter that I sent with the application. Basically, in a group of four houses, we're 109 down to 103. Those front porches are actually larger and more square footage and actually closer to the 25-foot minimum than what mine is. Actually, every porch on Rosemont, - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 none of them meet the 25-foot minimum. The homes do. Every home meets the 25-foot, but none of the porches. And I know they were put on 40 and 50 years ago, but it's something that probably should be looked at. You know, I feel that this porch isn't going to impair the development of the neighborhood. It's not going to affect any public health or safety or welfare of the neighborhood. If anything, it's going to improve the appearance of the neighborhood and increase the value of not only my property, but the other properties that are there, and even I guess a larger tax base for the Borough. Again, we're just in line with two other homes directly down from me, all within the four houses that I stated before, and it's not going to cause any really problem on the street as congestion problems or with the utilities or other public services. I guess while I was looking through -- And I'm no lawyer, that's for sure, an attorney, but I did a little research and I found this -- I mean, I hadn't heard of it before -- the de minimis doctrine. Have you ever heard of that? I don't know, I never heard of it before. But I guess it was just some type of a doctrine on variances that a variance can be granted - FILIUS & MCLUCAS REPORTING SERVICE, INC. - HarHsburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 when you're going away from or deviating from the variance, but the ordinance is relatively -- And not to say that this is a minor ordinance, it's not. There has to be setback limits, I understand that. But when the ordinance is relatively minor and compliance to it is not really going to affect anything for public policy or safety. But, really, this ordinance should be -- I assume this is for the whole Borough, the 25-foot setback. I assume that it is. I understand with new housing that that would be an issue that could be presented, but this ought to be really researched and adjusted to what we have in the Borough now, because there's hardly a home in the Borough that meets that. Some homes are -- you know, we know are up right on the sidewalk. And they've been that way for years, I understand that. But, again, most of the homes would never meet this requirement, let alone their porches. As I said, I have several letters from some long-time residents who live on the one street about this matter. People like ourselves, investing in their homes and making improvements, not only for ourselves, but the neighborhood and the Borough. And feel really there's nobody there that I heard anything personally negative from it. - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 6 1 I guess as an ending, this basically 2 three-month ordeal -- And I know some of this came 3 about because I didn't originally have the permits for 4 the roof, but I would probably still be here for a 5 variance anyway, really. But I applied for the 6 building permits for the porch, the roof, the zoning 7 ordinance and now the zoning variance. 8 But I guess I'll just -- I'll always feel 9 that I was kind of singled out for some reason, for 10 whatever reason. Maybe I wasn't, but I just feel 11 that, when there's other code and building violations 12 in this Borough that are astronomical, that are beyond 13 belief sometimes, and if some people would open up 14 their eyes to it. It's not one place, it's all over 15 the Borough, in the alleys, everywhere. And, to me, 16 sometimes it seems nothing is being done about it. 17 And maybe it is and I just don't know about it. You 18 know, I understand that. 19 But I'd just hate to think that Borough or 20 anybody -- you know, I mean, would come down to 21 Rosemont and pick me as a prime example to, I don't 22 know -- I hate to use the word discriminate against or 23 something like that -- I just can't believe 24 something -- someone would do that. But I guess 25 really I just hope this variance is granted and we can - FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 move on, which -- that I can complete this. But the people that I've talked to and everything, I've made a statement to them, and I might as well make it to you guys, that New Cumberland is more than just Bridge Street. We've beautified Bridge Street and it's beautiful and it's great. But walk back and all the way back, the alleys and everything, there are more code violations and building violations than you could shake a stick at. And I think we all know it, really. And some can't be helped, but I think some could, some improvements could be made. But I guess really that's about all. I just feel that it's really -- I'm not doing anything that some other homeowners in the neighborhood haven't done. And, like I said, I'm further back, and the two specific porches that I'm talking about, they're larger, they have a bit more square footage, they're longer, wider and closer to the setback line. That's really all I have. CHAIRMAN GENTZEL: Before we get to questions, I would just like to sort of say for the record that this is the Zoning Hearing Board. MR. PATACCONI: Right. CHAIRMAN GENTZEL: We don't write the zoning ordinance, and we have a very -- we have a - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 8 1 specific role. Whether the setback requirement ought 2 to be 25 feet or 17 feet or 10 feet or whatever is a 3 matter for Borough Council to decide. And they put 4 those rules in place knowing that they're going -- 5 that absent the rule, people would want to build 6 closer to the street than the rule allows. 7 MR. PATACCONI: Right, I understand. 8 CHAIRMAN GENTZEL: That's the purpose of 9 the rule. And our job is to consider applications 10 for, in this case, a variance from the rule. 11 I do not believe that if there are other 12 porches that violate the setback requirement, I do not 13 believe it's because they received a variance from 14 this board. If that were the case, that would be 15 relevant, but I don't believe -- Mr. Stutzman has been 16 on the board longer than I -- that any of these 17 porches exist by virtue of a variance granted by this 18 board. Just so you know that. I don't recall -- and 19 I've been on the board -- dealing with an issue down 20 there. 21 There are no doubt instances here, as other 22 places, where laws are violated and the violator can 23 get caught. At times, those things happen, but it's 24 not in and of itself a basis for us to grant a 25 variance to somebody just because. When a case comes - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before us to decide whether we'll allow somebody a variance or not, I don't believe the fact that somebody else got away with it -- MR. PATACCONI: Oh, I would hope not. CHAIRMAN GENTZEL: So, anyway, having said that, we'll open it to questions. Mr. Stutzman? MR. STUTZMAN: Yes, if I could, in order to second what Mr. Gentzel has already creatively pointed out to you, Mr. Patacconi, our hands are tied as far as the ordinance is concerned. I think that's the bottom line. And further than that, I refer you to Section 704.1, Application Procedures, Subsection 5, which may seem like nonsense. This is part of what our -- this is part of the ordinance found on Page 65 of the ordinance itself. Subsection 5: If there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape or exceptional topography or other topographical or other physical condition peculiar to the particular property, et cetera, et cetera, and that the unnecessary hardship is due to such conditions. Well, in your case, the Borough would not -- There's no hardship condition. Subsection 6 -- and I think this very much - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-843-6418 PA 1-800-233-9327 10 1 so applies in your situation -- that because of such 2 physical circumstances or conditions, there is no 3 possibility that the property can be developed in 4 strict conformity with the provisions of the zoning 5 ordinance and that the authorization of a variance is 6 therefore necessary to enable the reasonable use of 7 the property. That's not the case again. 8 And Subsection 7, that such unnecessary 9 hardship has not been created by the applicant. Now, 10 there are other subsections there, too, Mr. Patacconi, 11 but the bottom line is that you as the applicant must 12 prove hardship based on the criteria set forth in 13 Section 704, Page 65, 66 of the ordinance. You're 14 asking for a dimensional variance as opposed to a use 15 variance. And you as the applicant -- applicants in 16 both the cases to both variances, both kinds of 17 variances, the use and dimensional, as in your case, 18 you must prove hardship. 19 What's your hardship? 20 MR. PATACCONI: Well, there is no hardship. 21 There is no hardship. 22 MR. STUTZMAN: So, therefore, there's no 23 variance to be granted. We cannot do that. Our hands 24 are tied. 25 CHAIRMAN GENTZEL: It really leaves us - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with -- Mr. Stutzman is correct in what he's explaining to you. Again, as you know, if it were a circumstance where in prior instances other homeowners had come to us for variances under similar circumstances and for whatever reason we had granted them variances, then I think that, you know, you would have a very strong argument that this board -- this decision of this board -- We can't comingle with the Borough Council or the Planning Commission or any other agencies, the question is before this board. And the board has not granted variances to allow people to build porches within the front setback, there or anywhere else, I believe. And so, as Mr. Stutzman recited, the whole concept of the variance is based on this idea of whether there's a hardship and -- we'll set the bounds a little bit here -- where there's a hardship that prevents the reasonable use of the land, and that doesn't appear to be the case here. You've acknowledged yourself that it's not a hardship. I sympathize with you, but I think that given our role as a quasi-judicial board, there doesn't appear to be much choice in this matter. MR. STUTZMAN: I can only think, Mr. Patacconi, that the existing porches which encroach - FIUUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 within the setback lines in your neighborhood -- I've been on this board for 20 years, and we've never had one that I'm aware of that -- any of the porches in your neighborhood where a variance has been granted for encroachment within the required setback, front yard setback, according to the zoning ordinance. MR. PATACCONI: Well -- MR. STUTZMAN: I can only think that they must be a pre-existing -- what's called a pre-existing nonconforming use. In other words, they were there -- the porches were there before the zoning ordinance. MR. PATACCONI: 105 definitely was, but 103 was put on two or three years ago. MR. STUTZMAN: Well, that one must have fallen through the cracks then. MR. PATACCONI: It fell through the cracks. And it was put on two or three years ago, no more -- No more than three years ago, that porch was put on. MR. MILLETICS: If I may, just to shed some light on this area a little bit. CHAIRMAN GENTZEL: Could you -- MR. MILLETICS: My name is Dave Milletics. I'm the zoning officer for New Cumberland Borough. The homes over there, the way they are situated at this point in time, if you measure the - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 13 1 25-foot setback, it goes to the front of the house. 2 Every porch on that street would be in violation, no 3 matter how it was built. You couldn't add a porch or 4 maintain a porch in any manner in the way these 5 properties are set up. 6 So as far as looking at maybe a hardship to 7 cover the front of the house or something or along 8 that line, you may want to consider that, because the 9 25 is all the way to the front edge of the home, and 10 any protrusion beyond that is already in the setback, 11 a step or anything of that nature, a stoop. 12 MR. STUTZMAN: That's already there. We 13 can't do anything about it. 14 MR. MILLETICS: Well, that's what I'm 15 saying. You're looking at the relationship here of 16 what he's trying to do or the other porches as they 17 stand. 18 MR. STEWART: The other porches, I 19 understand there are two there that come out to the 20 extent that he wants to build. How about the other 21 porches on that block? 22 MR. MILLETICS: Most of the porches -- any 23 porch in that block is in the setback, whether it was 24 built originally or added later. The one picture that 25 I took -- I'll call it No. 1 -- and it looks down the FILIUS & MCLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 14 1 line, and the columns that you see on the left side of 2 the picture are Mr. Patacconi's porch, and the porch 3 that you see next is the oldest porch in that section. 4 And that is even with that porch in the oldest 5 section. As you look beyond there, you'll see a porch 6 than extends beyond his. That's one of the newer 7 porches that had basically fallen through the cracks. 8 MR. STUTZMAN: Well, his porch is already 9 there, isn't it, Dave? 10 MR. MILLETICS: The porch itself and the 11 roof, I believe, or something had been added in the 12 last few years. And the porch itself, you had applied 13 for that recently, and that was what, three years? 14 You said you had started three years -- 15 MR. PATACCONI: Two, two. 16 MR. STUTZMAN: Well, I just think our hands 17 are tied here. 18 MR. MILLETICS: I just wanted to bring that 19 to light. I mean, it's your decision, and I just 20 wanted to point that out to you. 21 MR. STUTZMAN: We've always taken a strict 22 instructions' stance on it as far as -- or stand as 23 far as granting variances, because if we make one 24 exception, then we have to -- or make one deviation, 25 then we have to make a deviation for every variance or - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 request we get, which are too numerous in the course of a year. MR. MILLETICS: I understand. CHAIRMAN GENTZEL: And probably many more. MR. STUTZMAN: And many, many more. CHAIRMAN GENTZEL: Dick, what were you going to say? MR. STEWART: I guess you've got to look and see how many of those are really way out where he is. There are some instances where, you know, the whole neighborhood has changed. CHAIRMAN GENTZEL: Right. MR. STEWART: Then I think that's what it comes down to, has the whole neighborhood changed or.... MR. STUTZMAN: Well, how can we know this? Based on the applicant's -- MR. STEWART: No, well, I mean, you guys looked at the -- you made a view of the block down there. MR. STUTZMAN: MR. STEWART: you to make, I think. Yes. So that's a determination for MS. KERR: Can I speak? I'm a neighbor, and I've lived there -- - FILIUS & McLUCAS REPORTING SERVICE, INC. - Hanisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 16 1 CHAIRMAN GENTZEL: Well, wait a second. We 2 will get to you, I promise. 3 Dick, you're advising us as a matter of 4 legal advice as a valid basis to grant the variance 5 would be -- 6 MR. STEWART: If the whole neighborhood 7 down there is changed so that -- you know, you've got 8 to figure out what that is. If everybody else's porch 9 is out where his is, then there's an argument that the 10 whole neighborhood has changed, and, therefore, you 11 know, the reason for a difference is. But I don't 12 know that in looking at that whether -- I think there 13 are probably two that are out as far as his is, but I 14 don't think the others are out that far from what I 15 can determine. 16 CHAIRMAN GENTZEL: There are quite a few 17 porches. 18 MR. STEWART: Yes, there are quite a few 19 porches, but -- And I think the difference is you've 20 got to look at porches that have the -- have a roof 21 over them, which is a structure which then comes in 22 within the building setback line. But if it's, you 23 know, steps up or stoops, I don't think that's 24 considered -- I don't think that would be a violation. 25 MR. STUTZMAN: Does he want to extend - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 the -- Mr. Patacconi, do you want to extend your porch any further toward the street or the sidewalk than it already is? MR. PATACCONI: MR. STUTZMAN: existing porch? MR. PATACCONI: MR. STUTZMAN: No. You want to retain the Right where it is. And that has been there how long? MR. PATACCONI: Well, that was put on two years ago. It did have a stoop, like some of the houses do have. MR. STUTZMAN: Well, why now does it suddenly come up, because you're putting a roof over it? MR. PATACCONI: Because I'm putting a roof over it. MR. STUTZMAN: Did you get a building -- MR. PATACCONI: No, I never did that. No, I didn't. MR. STUTZMAN: Well, yours and two others down there, I think -- I forget the house numbers. I'm looking them up. There are three, including yours, that are further out than the others. The others are more like a stoop kind of. - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PATACCONI: Right. Yes, they are. MR. STUTZMAN: Yours is the only -- And the other two in the neighborhood. I think one is what, 103? MR. PATACCONI: 103 and 105. Actually, 107 is like the zoning officer said, is out with mine, it's just not as long. It's width-wise out. MR. STUTZMAN: They are porches that you can sit on? MR. PATACCONI: Yeah, yes. MR. STUTZMAN: And the others are more or less -- MR. PATACCONI: Just a step-up stoop. MR. STUTZMAN: Just a step-up stoop. And.... MR. STEWART: It's the roof that does it. Just the fact that the stoop is out there doesn't make any difference under the ordinance. MR. PATACCONI: Some have the roof on them. MR. STUTZMAN: And the others -- When that happened, whether it was years ago or recently, I have absolutely no idea. I just hate to deviate from the ordinance itself. And you seem like an awfully nice guy, and I'm sure you are, and I'd like us to be able to help - FILIUS & McLUCAS REPORTING SERVICE, INC. -- Harrisburg 717-236-0623 York 717-M-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 you out, but I can't see how we can do that, except if we -- The only way is really just to change -- to ignore the provisions of the ordinance 25-foot requirement. CHAIRMAN GENTZEL: Let me ask a question, Mr. Stutzman, of the zoning officer again. In your review of that area, are we talking essentially -- I did look at it, but I suppose it comes out from this point of view. Are we talking about, including this one, there would be three covered porches in that immediate area that would be in the setback? MR. MILLETICS: In that immediate area, yes. MR. PATACCONI: There's actually one across the street from mine further down. It's not quite as large, but it's out of the setback. MR. STUTZMAN: What happens if your other neighbors in the neighborhood, you know, a month or two from now or next spring, your other neighbors want to extend their porches, too, and, therefore, we let -- MR. PATACCONI: You let me, you have to let them, I guess. MR. STUTZMAN: Then we have to let them do - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. MR. PATACCONI: Right, I understand that. MR. STUTZMAN: It's a Catch-22 situation, because then we're ignoring the provisions of the zoning ordinance. MR. PATACCONI: And I know you told me that you -- MR. STUTZMAN: We're put between a rock and a hard place. MR. PATACCONI: -- you men don't set out the zoning ordinance, but the Borough had better take a good look at this and revamp it maybe. CHAIRMAN GENTZEL: Well, that's -- MR. PATACCONI: Yeah, I know, that's a different situation, but really they should. CHAIRMAN GENTZEL: And perhaps you're right. I'll pass the suggestion on. MR. PATACCONI: Like the zoning officer said -- and I'm glad he did -- the houses are 25 feet, every one of them. CHAIRMAN GENTZEL: Which would indicate that whoever built the houses knew what the setback was. MR. PATACCONI: Oh, yeah, they knew exactly where the setback was. - FILIUS & McLUCAS REPORTING SERVICE, INC. - Hanisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 21 1 CHAIRMAN GENTZEL: And they built the 2 houses on the setback line. 3 MR. PATACCONI: And we're talking 60 years 4 ago or whatever. 5 CHAIRMAN GENTZEL: If they had wanted, they 6 could have built the houses 35 feet back with room for 7 porches, but they didn't, and so here we are. 8 MR. STUTZMAN: I think it's a danger of the 9 precedent setting. 10 CHAIRMAN GENTZEL: I said it concerns me as 11 well. We want to hear from the audience. We can come 12 back to you about any of your presentation now. We 13 did have a request for a comment from the audience. 14 Ma'am, if you would like to come up to the 15 microphone and speak, and identify yourself for the 16 stenographer. This is all being recorded. As we 17 said, the acoustics are not the best in here, so if 18 you could use the microphone, we'd appreciate it. 19 MS. KERR: Okay, my name is Patricia Kerr. 20 I live at 110 Rosemont Avenue. I lived there 22 years 21 and moved away for 24. I've been back there for 10 22 years now. 23 My problem is, when did this ordinance come 24 about and how can people know the ordinance of the 25? 25 Is it from the curb? I was just questioned by my - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harris6urg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 22 1 neighbor. She was under the impression it was from 2 your -- from the middle of the street to your house. 3 That is the problem for me. Who knows exactly the 4 distance of all these ordinances? 5 CHAIRMAN GENTZEL: Well, among the other 6 people who know is the zoning officer. That's part of 7 the reason why we have a zoning officer, so I'll let 8 him address your question. 9 MR. MILLETICS: As far as the setback goes, 10 it's from the front edge of your property line, not 11 the curb, the front edge of the property line. 12 MS. KERR: Where is that? 13 MR. MILLETICS: That's your determination 14 based on the survey. Generally in your neighborhood, 15 you have sidewalks. Usually it's on your edge side of 16 the property is where it starts; the back side, not 17 the curbside, towards your house. So from that point 18 25 feet back is your setback. 19 MS. KERR: When did this ordinance come 20 about? 21 MR. MILLETICS: October 5th, 1981. 22 MS. KERR: 181? 23 MR. STEWART: Actually, it's probably 24 further back than that, because -- 25 FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 23 1 MR. MILLETICS: Well, in particular, this 2 ordinance. 3 MR. STEWART: It probably stems back a long 4 time, because the ordinance did change. 5 MS. KERR: Because, I mean, these houses 6 have been there for 60 years. My house is one of the 7 original houses. And I know of the houses he was 8 talking about, and out of all of them there's only one 9 that was built then with the long porch, the full 10 width of the porch. 11 MR. MILLETICS: The Borough, as far as we 12 can tell, had ordinances back as far,as 1938, and 13 addressed a lot of the issues you're raising right 14 now. 15 MS. KERR: Because my house was built in 16 the mid '40s. My parents came in '48 and they were 17 the second homeowner. 18 MR. MILLETICS: It's very well, but they 19 may have fallen under that background. 20 CHAIRMAN GENTZEL: It would appear to be, 21 although I'm not stating this as fact, but it 22 certainly appears to be, my understanding is we have 23 25-foot setback. All of the houses, the main 24 structure of the houses are 25 feet back, so I would 25 suggest that that kind of indicates that the builder - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 24 1 or builders down there knew exactly where the setback 2 line was when they built the houses and built the 3 houses right up. I don't think it's coincidence that 4 all those -- in spite of coincidences -- it's a 5 coincidence that all those houses were all built on 6 the setback line. 7 MS. KERR: I understand now. 8 CHAIRMAN GENTZEL: And I guess the other 9 thing is that, you know, I think that most people are 10 aware of the fact that communities like this place, 11 all people in Pennsylvania now, there are building 12 ordinances and there are, for the most part, zoning 13 ordinances, especially in boroughs and cities, most of 14 the developed townships. And it's incumbent upon 15 people when they build a project to check the 16 governing -- 17 MS. KERR: They're here to beautify their 18 house, but because of the zoning ordinance, they 19 cannot do that. Because that's what my problem is 20 with this law right now, is that you are telling us as 21 homeowners that if we want to beautify our house to 22 make it look better, help our neighbors increase their 23 value of their house, we cannot do that. 24 CHAIRMAN GENTZEL: I think the Borough is 25 saying -- Well, the Borough Council is, Borough - FILIUS & MCLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9317 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Council passed this ordinance. We don't vote on the ordinances. Borough Council has said, if you want to make improvements to your house, it needs to be done within the parameters of this ordinance. Just as when you go to do the actual construction, you have to be within the parameters of the building code. And if the building code requires that you use too many two-by-fours or that you don't need all the electric outlets or whatever it might. But it's required of the Borough to say, if you want to beautify your home, go to it, but it has to be within the parameters of the ordinance. There are restrictions on what you can do. There's no question about that. MS. KERR: Well, my problem is that as he has stated, two of the porches have fallen through the cracks and how many more in this Borough have fallen through the cracks. We have a legitimate person that's trying to do his best to improve his house and we're not allowing it. That's my only problem with this whole thing. CHAIRMAN GENTZEL: Any others? Yes, sir. Again, if you would please identify yourself. MR. POGGIO: John Poggio, 618 Second Street. That's at the corner of Rosemont. I would like to know what the hardships are. You mentioned - FILIUS & McLUCAS REPORTING SERVICE, INC. - HarHsburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that if there was a hardship, then you would give a variance. What are the hardships? MR. STUTZMAN: May I ask, with your approval here, Mr. Gentzel, Mr. Stewart, our solicitor, to explain it to you in terms of layman's legalese. CHAIRMAN GENTZEL: I think that would be a good idea, because it is a legal term. MR. STEWART: It can't be something financial. It's basically something that because of something that -- you know, it wasn't your responsibility that the property cannot be developed or made reasonable use of in accordance with the ordinance. Just the fact that, you know, you want to have a porch on your property doesn't cut it. MR. POGGIO: It has nothing to do with the people or anything like that, it's just.... MR. STEWART: It's got to be unique to the property, so you really can't make reasonable use of the property without the granting of a variance. Just the financial hardship doesn't cut it or the fact that, you know, it's going to make your property nicer doesn't cut it. Those are the standards that the Legislature has set down for the granting of variance. And, for example, you know, Borough Council - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 said they don't want anything closer than 25 feet to the street. So without showing, you know, that there's no way it can be developed without that, this board is really powerless to do anything. You have to go to Borough Council and ask them to basically change the ordinance. MR. POGGIO: And I have another question. This is a hearing on the variance. Well, can't you just give a variance for the one property, for this one instance instead of changing everything? MR. STEWART: Well, but you still have to demonstrate a hardship. In other words, if you can't demonstrate the hardship, there's nothing that we can do about it, because the Borough Council has set 25 feet as that distance. So, in other words, he wants to go 17.9 feet from the street. The next person up might say, well, gee, I want to go 15 feet because I'd like to have a bigger porch. That's not something that this board has the power to do. Now, Borough Council could come by and say, you know what, in this particular section over there, maybe this doesn't make sense anymore and we'll change the ordinance, which is -- you know, they're the body that has to do that. This is a legislative process. MR. POGGIO: In other words, you can't do - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it one case at a time, it has to be all one? CHAIRMAN GENTZEL: Not without the individual property owner showing a hardship in the legal meaning of that term. It's again something that prevents you from making a reasonable use of the land. Obviously, there's a house on the property, there's folks living in the house, living there a long time, so it's obviously possible to use the property, it's being used. I guess the other way to say it if you think about it, the fact that the zoning ordinance prevents you from doing something that you would like to do is not in and of itself hardship. If it was, the zoning ordinance would have no effect whatsoever, because everybody who wanted to do something that the ordinance prevented, we'd just say it was a hardship and we'd have to grant it and they could go ahead and do it. I mean, the whole thing would become pointless. You could say, I want to go right out in the street, I want to have my porch go right out to the sidewalk. And the zoning ordinance says I can't do it and since I can't do it, I want to do it as a hardship. That's not the way it works. The zoning ordinance is intended to prevent - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 29 1 people from doing things. It prevents people from 2 building out so far in their front yard, building 3 their side yard, prevents them from, you know, opening 4 a grocery store in the middle of your block, prevents 5 them from opening a bar in the middle of your block. 6 There's all kinds of things that prevents lots of 7 people from doing lots of things that they would 8 probably like to do. 9 The question is, there are certain limited 10 circumstances under which we're allowed to consider 11 making exceptions. And what we're saying, what 12 Mr. Stutzman is saying quite well, is this does not 13 appear to be one in which there is a legally defined 14 hardship that would allow us to make an exception in 15 the rule that Borough Council has set down for 16 everyone. 17 MR. POGGIO: Okay, thank you. 18 CHAIRMAN GENTZEL: Any more comments from 19 the audience? 20 MS. NEVILLE: My name is Bambi Neville, and 21 I own the property at 107 Rosemont. And I just have 22 to say, I think this is a very slippery slope. Why do 23 we have these zoning laws if we're going to grant 24 variances to anybody or everybody? 25 I'm with you on if there was a hardship, I - FIUUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 30 1 think, you know, then it would be reasonable to take a 2 look at it. And if you guys do some kind of a study 3 or find out that the whole entire street is already 4 out there closer than 25 feet, then fine, but I really 5 think you should go through the Borough Council and 6 really do a study of this, because everybody on 7 Rosemont Avenue is going to be asking for, you know, 8 variances to move their porches a little bit closer to 9 the street or possibly many other worse things. 10 I have a question in if this project is 11 okayed, if this variance is okayed, will this -- do 12 you make sure that all the structures are built in 13 conformance with the IRC specs? 14 MR. MILLETICS: If it is approved. And any 15 building, it must be in a residential situation. It 16 would be the 2006 International Residential Code, the 17 IRC, that's correct. 18 MS. NEVILLE: Okay. 19 MR. MILLETICS: That's along the line of 20 the Pennsylvania State Uniform Construction Code Act, 21 and they're the ones that determine which codes are 22 used and when. 23 MS. NEVILLE: And you're like the building 24 inspector? 25 MR. MILLETICS: Building code, yes. FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. NEVILLE: Okay, great. All right, because I do have concerns about the way things are done, also, if it is okayed. But I just -- I really feel like, whew, this could be trouble. This could be huge trouble for our street. Thank you very much. CHAIRMAN GENTZEL: Is there anything else from the audience? MR. STUTZMAN: Mr. Gentzel, hearing none, no one else to present any testimony before this board this evening on Mr. Patacconi's application for variance, I will make the motion that the application as presented this evening be denied. CHAIRMAN GENTZEL: Second. All in favor? MR. STUTZMAN: Aye. CHAIRMAN GENTZEL: Aye. Move to adjourn this hearing? MR. STUTZMAN: Yes, I rule we adjourn the hearing. CHAIRMAN GENTZEL: This hearing is adjourned and we will proceed with the next one. (Whereupon, the proceedings were adjourned at 7:43 p.m.) - FILIUS & McL ACAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 32 -.L C E R T I F I C A T I O N 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. Dated in New Cumberland, Pennsylvania this 30th day of September, 2008. Z 'COMMOOF PENNSTLYA ,? NOTARIAL SEAL SUSAN L. PETRILLA, NOTARY NEW CUMBERLAND BORO,WMet Susan L. Petrilla, Notary Public W M2 N ExPI Registered Professional Reporter (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-815-6418 PA 1-800-233-9327 September 12, 2008 New Cumberland Borough Hall Zoning Hearing Board Robert Gentzel, Chairman 1120 Market Street New Cumberland, PA 17070 Dear Mr. Gentzel: This Letter is to introduce myself as a neighbor and friend of Tony Patacconi who resides at 109 Rosemont Avenue, New Cumberland, PA. I reside at 113 Rosemont Avenue, New Cumberland, PA and have lived there since 1954 with my wife, Winifred and raised two daughters there. Tony and his wife, Sally want to construct a porch roof to the front of their home and have applied to the Zoning Hearing Board for a variance to complete the addition. Tony is a man of integrity and takes good care of his property adding to the pride of the home owners on Rosemont Avenue. I am a retired bank Vice President, 80 years old, and my wife and I have enjoyed living at 113 Rosemont Avenue for the past 54 years. I hope the Zoning Hearing Board will look favorably at this variance of the New Cumberland Zoning Ordinance. I have no objection to the granting of this request. Sincerely yours, Georg S. Farner 113 Rosemont Avenue New Cumberland, PA 17070-2050 September 15, 2008 To: Borough of New Cumberland, Zoning Commission From: Steven and Margie Stahl 115 Rosemont Avenue New Cumberland, PA 17070 Reference: Zoning Variance Hearing/Front Porch for: Tony and Sally 109 Rosemont Avenue, New Cumberland, PA 17070 To whom it may concern: This letter is being sent on the behalf of Tony and Sally regarding their front porch and the zoning variance hearing which is set for September 16, 2008. Steven and I wanted to send support in writing stating the fact that we do not have any problem with the front porch structure being built at 109 Rosemont Avenue. Over the past few years, the structural and cosmetic improvements that Tony and Sally have made to their home have in our opinion, been nothing but a positive contribution to our neighborhood and the surrounding residences. We feel they are positively contributing to the value of our home and those around them by the quality of work they have and are doing to their property. We do not in any way have any problem as to the location of their porch, nor do we object to this porch being built, for we have taken notice to the fact that the other surrounding front porches on our block extend closer to the sidewalk and the curb than what Tony and Sally does. So, it is our opinion that the work that they have done to better improve their home has indeed brought the value of our homes up in the process. Thus making our neighborhood a more pleasant place to live. We hope that the board will approve their variance and allow them to finish what they have begun without any further delays. Sincerely, Steven Stahl/Date Margie Stahl/Date - k t: IN RE: BEFORE THE NEW CUMBERLAND ZONING APPLICATION OF HEARING BOARD TONY PATACCONI CASE NO. 08-03 DECISION OF THE ZONING HEARING BOARD The Applicant has requested a variance from the twenty-five foot (25') setback requirements of Section 202.2 of the New Cumberland Borough Zoning Ordinance (hereinafter "Ordinance") to allow him to erect a porch that will be setback seventeen feet nine inches (17' 9") from Rosemont Avenue. A hearing on the request was held on September 16, 2008. FINDINGS OF FACT 1. The Applicant is Tony Patacconi. 2. The Applicant is the owner of the subject property. 3. The subject property is located at 109 Rosemont Avenue in the Borough of New Cumberland. 4. Notice of the Hearing was posted on the property and all property owners and other parties required to be notified of the Hearing were notified in accordance with the terms of the Ordinance. 5. The property is improved with a single family dwelling house. 6. The Applicant has requested a variance from Section 202.2 of the Ordinance to allow him to erect a porch within seventeen feet nine inches (17' 9") of Rosemont Avenue instead of twenty-five feet (25') as required by the Ordinance. 7. Reasonable use of the property can be made without the granting of the variance. 1 ,+1 CONCLUSIONS The enforcement of the front yard setback requirements of Section 202.2 of the Ordinance does not inflict an unnecessary hardship upon the Applicant. DECISION It is the decision of the New Cumberland Zoning Hearing Board that the Applicant's request for a variance from the front yard setback requirements of Section 202.2 of the Ordinance be denied. The Applicant has not demonstrated that the enforcement of the Ordinance would create an unnecessary hardship required under the law to justify the granting of a variance. The Board cannot grant a variance where, as in the present case, only personal inconvenience is involved. There must be something unique about the property which would make the enforcement of the Ordinance an unnecessary hardship. In the Kline Zoning Case, 395 A.2d 122 (1959), a property owner asked for a variance of three and one-half (3 %2') from the building setback line to allow him to build an enclosed porch for the comfort of his asthmatic wife and son. The Pennsylvania Supreme Court held that the Zoning Board properly denied the request for a variance because the showing of personal hardship is insufficient. The Borough Council enacted the setback requirements knowing full well people might wish to build a structure closer to the street for many reasons. This requirement does not impose any hardship upon the Applicant that was not contemplated by the Borough Council when it enacted the Ordinance. There is nothing about the property that prevents it reasonable use and conformity with the Ordinance. Thus, the Board has no basis for the granting of a variance because the requirements of Section 704 of the. Ordinance and Section 910.2 of the Municipalities Planning Code have not been met. NEW CUMBERLAND ZONING HEARING BOARD BY: BY: Dated: September 30 , 2008 :344849 2 Bopouoh of New Cudepland 1 120 MARKET STREET P.O. BOX 220 NEW CUMBERLAND, PA 17070 PHONE: 774-0404 FAX: 774-8163 October 6, 2008 Mr. Tony Patacconi 109 Rosemont Avenue New Cumberland, PA 17070 Re: 109 Rosemont Avenue, New Cumberland Dear Mr. Patacconi: I am enclosing a copy of the Decision of the New Cumberland Zoning Hearing Board denying your request for a variance with regard to the property at 109 Rosemont Avenue, New Cumberland, Pennsylvania. This decision was reached at a public meeting of the Zoning Hearing Board held on September 16, 2008. Sincerely, NEW CUMBERLAND ZONING HEARING BOARD Robert R. Gentzel Chairman :344861 Enclosure cc New Cumberland Borough TONY PATACCONI, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07- 4 1'13 Cup:-1 ?'t...r o THE BOROUGH OF NEW CUMBERLAND ZONING HEARING BOARD, CIVIL ACTION -LAW V ' a C_') -i P"l - Defendantr NOTICE OF APPEAL a_ rn •- o 1. Appellant, Tony Patacconi, is an adult individual residing at 109 Rosemont Drive New Cumberland, PA 17070. 2. Appellee is the Borough of New Cumberland Zoning Hearing Board. It has an address of 1120 Market Street, P.O. Box 220, New Cumberland, PA 17070. 3. The determination subject to appeal pursuant to the Pennsylvania Municipalities Planning Code is the decision of the Borough of New Cumberland Zoning Hearing Board denying a request for variance by Appellant relative to construction of a roofed porch. 4. The Zoning Variance request concerned §202.2 of the New Cumberland Zoning Ordinance. Said Section states: 202.2 Area and Bulk Regulations - The following regulations shall be observed for each lot: Maximum Regulations Building Height 35 feet Building Coverage 30 percent Building plus paved coverage 40 percent Minimum Regulations Building Setback Line 25 feet Lot Area 5,000 sq ft Lot Width - street frontage 50 feet Open Area 70 percent Rear Yard 5 feet Side Yard 5 feet 5. 6. 7. 8. The request of the Appellant was to construct a roofed front porch within seventeen feet nine inches (17'9") of Rosemont Avenue instead of twenty-five feet (25') as required by the Ordinance. On September 16, 2008, a hearing was held before the Borough of New Cumberland Zoning Hearing Board to address Appellant's Application for Variance relating to the construction of a roofed front porch on Appellant's residence. The proposed deviation from the set back is de minimis in nature and rigid compliance with the ordinance is not necessary to preserve public policy. Substantial evidence was also introduced of record to show that while the 2 construction of the actual houses existing on Rosemont Avenue were in compliance with the twenty-five feet (25') set back, many neighbors had stoops, steps and even larger porches than proposed by Appellant Patacconi's erected and extending, into the twenty-five foot (25') right-of-way. 9. On or about September 19, 2008, the Borough of New Cumberland Zoning Officer, David I Milletics, advised Mr. Patacconi that the Application for Variance was denied by the New Cumberland Borough Zoning Hearing Board. A true and correct copy of this letter is attached hereto as Exhibit "A." 10. The Board objected to the installation of a roof but allowed the porch surface to remain in the twenty-five foot (25') right of way. 11. A decision of the Zoning Hearing board was issued on September 30, 2008. This decision is attached as Exhibit "B." 12. On September 23, 2008, A Zoning Permit was issued for the porch dated September 23, 2008. A copy of the Permit is attached as Exhibit "C." 13. The Board erred and abused its decision in not allowing a variance for 3 construction of a roofed porch for the following reasons: a. The decision is arbitrary and capricious in light of the substantial evidence existing as to the existence of roofed porch structures along Rosemont Avenue which exist on many fronts of the houses in the twenty-five foot (25') set back b. The decision to allow a porch to be erected on the ground in the actual twenty-five foot (25') set back but deny the right to cover the porch with a roof has no reasonable basis in law and fact. The construction of a roof at a higher elevation would be less intrusive and provide less impact into the twenty-five feet (25') set back. c. The Board made an error of law in not granting the variance in accordance with 53 P. S. 10910.2 and New Cumberland Ordinance 704. 1, et. seq. The construction of the roof will not negatively effect the health, safety and general welfare of the community or alter the essential character of the neighborhood or permanently impair the appropriate use or development of any adjacent property. In this situation, the construction would actually improve the aesthetics of the neighborhood by making Appellant's porch consistent with the existing porches, improve property values, allows optimum use by Appellant of the property. Failure to allow same is a hardship to Appellant. 4 Bopouph of New Cumbepland 1120 MARKET STREET P.O. BOX 220 NEW CUMBERLAND, PA 17070 PHONE: 774-0404 FAX: 774-8163 September 19, 2008 Tony Patacconi 109 Rosemont Avenue Parcel #: 25-25-0006-401 New Cumberland, PA 17070 Re: Zoning Hearing Board Decision: Dear W. Patacconi: This letter is to inform you that your Application for a variance was denied by the New Cumberland Borough Zoning Hearing Board. The frame work of the roof that you have constructed must be removed and further work for a porch roof will not be permitted. The Zoning Hearing Board in their decision process did not have issue with the larger porch surface that was constructed to support the proposed roof therefore this may remain as is. Should you have any questions in regards to the decision or any other matter please contact our office. Respectfully, 'biu?ew-U'letics 4fft?? David J. Zoning Officer EXHIBIT "B" IN RE: BEFORE THE NEW CUMBERLAND ZONING APPLICATION OF HEARING BOARD TONY PATACCONI CASE NO. 08-03 DECISION OF THE ZONING HEARING BOARD The Applicant has requested a variance from the twenty-five foot (25') setback requirements of Section 202.2 of the New Cumberland Borough Zoning Ordinance (hereinafter "Ordinance") to allow him to erect a porch that will be setback seventeen feet nine inches (17' 9") from Rosemont Avenue. A hearing on the request was held on September 16, 2008. FINDINGS OF FACT 1. The Applicant is Tony Patacconi. 2. The Applicant is the owner of the subject property. 3. The subject property is located at 109 Rosemont Avenue in the Borough of New Cumberland. 4. Notice of the Hearing was posted on the property and all property owners and other parties required to be notified of the Hearing were notified in accordance with the terms of the Ordinance. 5. The property is improved with a single family dwelling house. 6. The Applicant has requested a variance from Section 202.2 of the Ordinance to allow him to erect a porch within seventeen feet nine inches (17' 9") of Rosemont Avenue instead of twenty-five feet (25') as required by the Ordinance. 7. Reasonable use of the property can be made without the granting of the variance. 1 CONCLUSIONS The enforcement of the front yard setback requirements of Section 202.2 of the Ordinance does not inflict an unnecessary hardship upon the Applicant. DECISION It is the decision of the New Cumberland Zoning Hearing Board that the Applicant's request for a variance from the front yard setback requirements of Section 202.2 of the Ordinance be denied. The Applicant has not demonstrated that the enforcement of the Ordinance would create an unnecessary hardship required under the law to justify the granting of a variance. The Board cannot grant a variance where, as in the present case, only personal inconvenience is involved. There must be something unique about the property which would make the enforcement of the Ordinance an unnecessary hardship. In the Kline Zoning Case, 395 A.2d 122 (1959), a property owner asked for a variance of three and one-half (3 %Z') from the building setback line to allow him to build an enclosed porch for the comfort of his asthmatic wife and son. The Pennsylvania Supreme Court held that the Zoning Board properly denied the request for a variance because the showing of personal hardship is insufficient. The Borough Council enacted the setback requirements knowing full well people might wish to build a structure closer to the street for many reasons. This requirement does not impose any hardship upon the Applicant that was not contemplated by the Borough Council when it enacted the Ordinance. There is nothing about the property that prevents it reasonable use and conformity with the Ordinance. Thus, the Board has no basis for the granting of a variance because the requirements of Section 704 of the. Ordinance and Section 910.2 of the Municipalities Planning Code have not been met. NEW CUMBERLAND ZONING HEARING BOARD BY Dated: September JO , 2008 BY :344849 2 EXHIBIT "C" d a C? i? U O '.a O O AA '' 1W r O a? o bA v' r? t ? C 0 N ZW v 0 H u r E a? O ?. Q V a .^y V r? T 0 N .W S N_ t- O O C? a 130ROtJGIA Of I AND cu N EW C w.%ljj4 N ,a o t t r yl ti ?"" Oll ( tlo_ qrb$ % tobq-r 51 Y9? " A dosed '?' 'E? I?A SN? vv -ice_ $15.00 TABLE OF CONTENTS ARTICLE 100 - GENERAL PROVISIONS Page Ho- Section 101. Explanatory Provisions---------------------------------------- 1 102 Zoning.Districts and the Zoning Map--------------------------- 2 103 Definitions and Interpretations--------------------=---------- 3 104 Common Regulations----------------------------------------- L--- 11 105 Lot Restrictions and Exceptions------------------------------- 12 106 Non-conforming.Use Regulations-------------------------------- - 12 107 Plan Approval------------------------------------------------- 14 108 Zoning Permit------------------------------------------------- 15 109 Fees----------------------------------------=----------------- 16 110 Certificate of Intention-------------------------------------- 17 ARTICLE 200 - RESIDENTIAL DISTRICTS Section 201 R-1-A Residential District------------------------------------ 18 202 R-l Residential District------------------------------------ 22 203 R-2 Residential District-------------- 26 ARTICLE 300 - COMMERCIAL DISTRICTS Section 301 C-1 Commercial District------------------------------------- 31 302 C-2 Commercial District------------------------------------- 36 ARTICLE 400 - INDUSTRIAL DISTRICT Section 401 1-1 Industrial District------------------------------------- 44 ARTICLE 500 - SIGNS Section 501 Sign Permits=------------------------------------------------- 50 502 Sign Regulations---------------------------------------------- 51 ARTICLE 600 - ADMINISTRATIVE PROCEDURES Section 601 Zoning Officer------------------------------------------------ 56 602 Amendments-------------------------------------------- ------ 56 603 Stop Order---------------------------------------------------- 58 604 Planning Commission------------------------------------------- 58 ARTICLE 700 - ZONING HEARING BOARD Section 701 Duties and Powers--------------------------------------------- 61 702 Appeals------------------------------------------------------- 63 703 Special Exceptions-------------------------------------------- 64 704 Variances ---------------------------------------------- ------ 65 ARTICLE 800 - ENFORCEMENT AND ENACTMENT PROCEDURES ` Section 801 Violations---------------------------------------------------- 67 802 Penalties----------------------------------------------------- 68 803 Appeal to Court-------------------- ------------------- 68 804 Enactment Provisions------------------------------------------ 69 ARTICLE 100 - GENERAL PROVISIONS It is the purpose of these regulations. to prescribe certain common restric-;- tions which are applicable throughout the municipality. In addition, specific definitions and language interpretations of words and phrases which have particular. reference to zoning are contained here. Explanatory material relating to the scope of these 'restrictions and their interpretations' are also contained in this section. Nothing herein shall be interpreted as providing limitations on specific controls delineated in subsequent sections of this Ordinance. It is further the purpose of these regulations to promote, protect, and facilitate-the public health, safety, general welfare, coordinated and practical community development, proper density of populations, the provision of adequate light and air, vehicle parking and loading space, public grounds and other public requirements, as well as to prevent the overcrowding of land, blight, danger, and congestion in travel and transportation and loss of health, life or property from fire, flood, panic or other dangers. SECTION 101 EXPLANATORY PROVISIONS 101.1 Scope From and after the effective date of this Ordinance, the following activities shall be subject to its regulations: The use of all land and every building or portion of a building, and uses accessory to such land or buildings; The exterior area dimensions and bulk of every building constructed or exterior alterations increasing such dimensions or bulk; The conduct or performance of any use when such conductor performance affects the municipality or the right of adjacent property owners. 101.2 Interpretation of Zoning Standards In interpreting and applying the provisions of this Ordinance, they shall be held to be the minimum requirements for the promotion of the public health, safety, and welfare of the municipality. 101.3 Relationship to the Comprehensive Plan This Ordinance is adopted to promote orderly development of the Borough in accordance with an established Comprehensive Plan which also contains data on existing conditions, statements concerning the proposed plan and evalua- tion of implementation techniques. The Policy Statement contained in the Comprehensive Plan sets forth the detailed goals and objectives of the Borough which are equally applicable to this Ordinance. Such material shall be considered as legislative history and shall be utilized when necessary to establish policy in the interpretation of this Ordinance- 101.4 Short Title This ordinance shall be-known and may be cited as "The Borough of New Cumberland Zoning Ordinance". SECTION 102- ZONING DISTRICTS AND THE ZONING MAP , 102.1 Classes of Districts For the purpose of this ordinance, the Borough of New Cumberland is hereby divided into districts which shall be designated as follows: Residential: R-I=A Residential District R-1 Residential District R-2 Residential District Commercial: C-1 Commercial District C-2 Commercial District Industrial: 1-1 Industrial District 102.2 Zoning Map The areas within the Borough of New Cumberland designated upon a map which shall be known as the "Zoning Map" and shall be considered to be a part of this Ordinance. 102.3 Location of the Zoning Map The official copy of the Zoning Map shall be maintained at the generally accepted location of the place of business of the municipality: In case of any dispute this map shall be considered as the official copy. 102.4 Interpretation of the District Boundary Lines The district boundary lines shall be shown on the Zoning Map. Such lines intended to coincide with property lines; center lines of streets, utility rights-of-way or bodies of water; or the corporate boundary of the munici- pality, unless the contrary is indicated on the Zoning Map. In case of dispute, the procedure shall be as designated Appeals, Section 702 of this ordinance. 102.5 Amendments to the Zoninq Ma Any alteration of a boundary line, except a relocation ordered "by the Zoning Hearing Board in cases of appeal or by court of law, shall be regulated by Amendments, Section 602 of this Orinance. All such changes shall be noted on the official copy of the Zoning Map. 102.6 Effect of the Zoning Map on Other Provisions of this Ordinance Districts designated by Articles 200, 300, and 400 of this Ordinance shall be indicated on the Zoning Map. SECTION 103 DEFINITIONS AND INTERPRETATIONS 103.1 Word Usage Words and phrases shall be presumed to be used in their ordinary context unless such word or phrase is defined or interpreted differently within this section. Disputes concerning the definition or interpretation of a word or phrase shall be resolved as provided in Appeals, Section 702 of this Ordinance. 103.2 Language Interpretation For the purpose of this Ordinance, certain grammatical forms and words shall assume a wider interpretation than assumed in common usage. The following shall constitute a complete listing: All present and future tenses shall be interchangeable; All genders shall be interchangeable; The singular and plural shall be interchangeable; The word "shall" is always mandatory; The word "Regulations" shall refer only to the controls imposed by this ordinance and shall be interpreted strictly; The word "standards" shall refer only to statements imposed by this ordinance and shall be interpreted broadly; The word "person" includes an individual, a corporation, a partnership, an incorporated association, or any other similar entity; The word "lot" includes the word "plot" or "parcel"; The word "used" or "occupied" as applied to any land or building shall be construed to include the words "intended or designed to be used or occupied". 103.3 Use Regulations Use regulations shall represent a major form of zoning control constituting the only permitted primary uses for a specific district. All other primary uses shall be prohibited. Specific use words and phrases are identified in Section 103.6 of this ordinance. Such definitions shall be strictly inter- preted, and uses of like kind and character shall be excluded unless meeting the terms of the definition. However, nothing shall be interpreted as restricting the Planning Commission from adopting administrative regulations giving specific examples of these definitions. Uses initiated prior to • these controls which do not conform to all sections of this ordinance shall be regulated by Non-Conforming Use Regulations, Section 106 of'this ordinance, and registration of such uses shall be required, Section 106.5 of this ordinance. -3- 103.4 Area Bulk Requlations Area and bulk regulations shall represent a major form of zoning control constituting all of the restrictions upon the size of a permitted primary use. Specific area and bulk words and phrases are identified in Section 103.6 of this ordinance. Violations of these controls in existence at the time of enactment of this ordinance shall be regulated by Non-Conform- ing Use Regulations, Section 106 of this Ordinance. However, no additional violation shall be permitted, Section 106.2. 103.5 Performance Standards Performance standards shall represent a major form of zoning control tech- nique constituting all of the restrictions upon the activities of any permitted use. Other than the general phrases identified in Section 103.'6 of this Ordinance, the standards shall be self-defining, utilizing the commonly accepted definitions. 103.6 Definition of Terms The following words are defined in order to facilitate the interpretation of the ordinance for administrative purposes and in carrying out of duties by appropriate officers and by the Zoning Hearing Board. Administrative Activities - Any business function in which there is no regular contact with the general public and no materials, products, goods or prepared foods are stored except for office consumption. Alley - A way of less than 30 feet in width intended for general public use to provide means of approach for vehicles and pedestrians. Alterations - As applied to a building or structure, means a change or rearrangement in the structural parts or in the existing facilities, or an enlargement, whether by extending on a side or by increasing in height, or the moving from one location or position to another. Amendments - A change in use in any district which include revisions to the zoning text and/or the official zoning map; and the authority for any amendment lies solely with the Borough Council. Apartment - A dwelling unit within a multiple dwelling. This classi- fication includes apartments in Apartment Clouse, Apartment Hotels, Bachelor Apartments, Studio Apartments, and Kitchenette Apartments. Area - The extent of surface contained within the boundaries or extremities of land or building. Building - Any enclosed or open structure other than a boundary or fence, occupying more than four square feet of area, having a roof supported by columns or walls and intended for the shelter, housing or enclosure of persons, animals, or chattels, and including covered porches or bay windows and chimneys. Detached - A building which has no party wall. Semi-detached - A building which has only one party wall in common. Attached - A building which has two party walls in common. Building Area - The total of areas taken on a horizontal plane at the main grade level of the principal building and all accessory buildings, -exclusive of uncovered porches, terraces, and steps. Building Coverage - A percentage of lot area covered by the building. This is determined by multiplying the given percentage by the lot area to obtain the permitted building area. Building Height - The vertical distance measured from the average ele- vation of the proposed finished grade at the front of the building to the highest point of the roof for flat roofs, to the deck line of mansard roofs and to the mean height between eaves and ridge for gable, hip, and gambrel roofs. Building Length - The horizontal measurement of any continuous building wal 1. Building Plus Paved Coverage - The building area plus any impervious paving or ground cover, the permitted extent of which is expressed as a percentage of the lot size. Business Off ices'- Offices for transacting of business - including, financial institutions, real estate offices, insurance offices, buxt excluding any sale of goods stored on, manufactured on, or delivered to premises. Cartwa•y - That portion of a street or alley which is improved, deigned or intended for vehicular use. Carport - A covered space, open on three sides, for the storage of one or more vehicles and accessory to a main or accessory building. Church - A building used for public worship by a congregation excluding buildings used exclusively for residential, educational, burial, recrea- tional or other uses not normally associated with worship. Cleaning - A function involving the restoration of materials, goods or products to a more pure, less contaminated, less adulterated or less blemished condition. Clear-sight Triangle - An area of unobstructed vision at street inter- sections. It is defined by lines of sight between points at a given distance from the intersection of the cartway lines. Club/Lodge - A private organization involving the use of land and/or buildings for a function. Construction Site.- The total necessary land required for all buildings or uses within a unified development. Density, Gross - Number of dwelling units per acre, including area of -S- streets and public area. Developer - Any landowner, agent of such landowner or tenant with permission of such landowner, who makes or causes to-be made a sub- division of land or a land development. Distance Between Buildings - The required distance between facings or building walls. Distribution - A function involved in the division, dispensation, or relocation of materials, goods, or products. Driveway - The vehicular method of entrance and egress to a land use. DDweII Iin - A building or portion of building used for human habitation by a family but not including hotels, rooming houses or other accommo- dations used for transient occupancy. Dwelling Unit - One or more rooms used for living and sleeping purposes and having a kitchen with fixed cooking facilities arranged for occupancy by one (1) family. (a) Single-family detached dwelling. - A building used by one (l) family, having only one 1 dwelling unit and having two (2) side yards. (b) Single-family, semi-detached - A building used by one (1) family having one 1 side yard, and one (1) party wall in common with another. (c) Two family, detached dwelling - A building used by two (2) families with one 1 dwelling unit arranged over the other and having two (2) side yards. (d) Two family, semi-detached dwelling - A building used by two 2 families with one dwelling unit arranged over the other, having one side yard, and one party wall in common with another building. (e) Multiple dwelling - A building containing two (2) or more dwelling units. Engineer - A professional engineer licensed as such in the Commonwealth of Pennsylvania. Family - Any number of persons living and cooking together in a single housekeeping unit, not including more than three unrelated persons, and not including occupants of a club, fraterni.ty, lodging house or boarding house. Fence - Any freestanding and uninhabitable structure constructed of wood, glass, metal, plastic materials, wire, wire mesh, or masonry, single or in combination, erected for the purpose of screening or -6- dividing one property from another to assure privacy, or to protect the property so screened or divided, or'to define and mark the property line, when such structure is erected on or within two (2) feet of any front, side or rear lot line: for the purpose of this ordinance, a freestanding masonry wall when so located is considered to be a fence; also for the purpose of this ordinance,. when the term "lot line' is used in relation to fences it shall be synonomous with "rear Yard lot lines", "front yard. lot lines" and the area within two (2) feet of the same. Fences are not snynonomous with garden structures. Flood Plain Regulations - Refer to New Cumberland Borough Ordinances No.'s 444, 5, and 446. Floor Area Ratio- A ratio of the total floor area of a building to its lot area. A figure which when multiplied by the lot area will determine the amount of permitted floor area. Garage - A building used principally for the storage of vehicles. Goods - A finished product Governing Body - Shall mean the Council of the Borough of New Cumber- land, Cumberland County. Hotel - A building used as the more or less temporary abiding place of sixteen (16) or more individuals who are, for compensation, lodged, with or without meals, and in which no provision is made for cooking in any individual room or suite. A hotel may include restaurants, newsstands, and other accessory services primarily for serving its occupants and only incidentally the public. Improvement - Any type of structure, excavation, or paved section, excluding driveway or curb. Lot - A plot or parcel of land which is, or in the future, may be offered for sale, conveyance, transfer or improvement. Lot Area - The area of a lot, within the property lines and excluding space within any street, but including the area of any easements. Lot Line - The lines bounding a lot. Lot Width - The distance between the side lot lines, measured at the building setback line. Manufacture - A function involving either the processing or production of materials, goods or products but not including food processing. Materials - Articles which are components of a future product. Motel - A building or group of buildings, whether detached or in connected units, used as individual sleeping or dwelling units, designed with separate entrances and designed for year-Found occupancy, primarily for transient automobile travelers and providing for accessory off-street parking facilities. The term "motel" includes buildings designated as tourist courts,.tourist cabins, motor lodges, and similar terms. A motel may include restaurants, newsstands, and other accessory services primarily for serving its occupants and only incidentally the public. Nonconforming Building - A building or structure which does not conform to all the height, area, yard, etc., regulations of the district in which it is located. Nonconforming Sign - A sign which does not conform to the regula- tions of the district in which it is located. Nonconforming Structure - A structure or part of a structure manifestly not designed to comply with the applicable use provi- sions in a zoning ordinance or amendment heretofore or hereafter enacted, where such structure lawfully existed prior to the enactment of such ordinance or amendment or prior to the applica- tion of such ordinance or amendment to its location by reason of annexation. Such nonconforming structures include, but are not limited to, nonconforming signs. Nonconforming Use - A use whether of land or of structure which does not comply with the applicable use provisions in a zoning ordinance or amendment heretofore or hereafter enacted, where such use was lawfully inexistence prior to the enactment of such ordinance or amendment or prior to the application of such ordi- nance or amendment to its location by reason of annexation. Open Area - The required ground surface which must remain uncovered by building the extent of which is expressed as a percentage of the lot size. Open Porch - see Patio Party Wall - A wall on an interior lot line used or adopted for joint service between two buildings. Paved Terrace - see Patio Patio - An unenclosed, unroofed paved area which acts as an extension of the indoor living space of a dwelling. Premises - A lot, parcel, or tract of land and any building construc- tion thereon- Prepared Foods - Foodstuffs and/or drinks which have been cooked, changed, cleaned or otherwise altered for public consumption. Processing - A function involved in the manufacture of materials, goods or products in which they are not physically changed except for packaging and sizing. Product - Any article whose appearance or composition has been changed or altered, but not in a completed form for ultimate disposi- tion. Production - A function involved in the manufacture of materials, goods or products in which they are physically changed. Professional Office - The office of members of the accounting, archi- tectural, educational, engineering, legal, medical, scientific or related professions. Public - Any procedure in which the general public is involved. Public Health - The preservation of the general health and well- bei.ng of the public. Public Safety - The protection of the security of the public. Public Welfare - The. encouragement of all matters necessary to community life. Public Grounds - include parks, playgrounds, and sites for schools sewage treatment, refuse disposal, -highway maintenance, and other publicly owned and operated facilities. Repair - A function involved in the correcting of deficiencies affecting the performance ability of products or goods. Retail - Any public procedure involving a sale to the general public. Right-of-Way (street) - A public thoroughfare for vehicular traffic and/or pedestrian traffic, whether designated as a street, highway, thoroughfare, parkway, road, avenue, boulevard, lane, alley, or however designated. Sale - A procedure* by which services and/or real or personal property are transferred in ownership in exchange for something of value. School - Any place offering instruction in any branch of knowledge under the supervision of the Commonwealth of Pennsylvania or a lawfully constituted ecclesiastical governing body, person, partner- ship, or corporation meeting the requirements of the Commonwealth of Pennsylvania. Screening - A planted visual barrier or fence which shall be a material of sufficient height and density to reasonably conceal the structures and uses from view. Services - An act by which skills of one person are utilized for the benefit of another, provided no function involves the manufacture, cleaning, repair, storage, or distribution of products or goods except for the cleaning and repairing of clothing and personal accessories. Setback Line - An established line parallel to the right-of-way line bounding an area within which certain facilities are prohibited. (a) Building - No building or portion thereof shall be located within this setback line. (b) Improvement No improvement or portion thereof shall be located within this setback line. Sight Distance - The length of roadway visible to the driver of a passenger vehicle at any given point on the roadway when the view is unobstructed by traffic. -9- Sign - Any letter, word, model, device or representation intended as an announcement, direction, advertisement or attraction. Special Exception - The Zoning Hearing Board shall hear and decide requests for special exceptions in accordance with standards and criteria established by the governing body. ln,granting-a special exception, the Zoning Hearing Board may attach such reasonable conditions and safeguards, in addition to those expressed in the zoning ordinance, as it may deem necessary to implement the purpose of Act 247 and the zoning ordinance. Storage - A function involving the depositing of materials, goods or products for safekeeping. Street - A way of at least 30 feet in width intended for general public use to provide means of approach for vehicles and pedestrians. Streets Access Points - The distance between vehicular entrances or exits along -a street. Street Frontage - The lot width required along a street. Street Right-of-way Line - An established line marking the extent of the street right-of-way regardless of whether or not such right-of-way is dedicated. Structure - Any object other than an interior fixture, constructed, erected or attached to a fixed ground location. (a) Permanent - Structure which cannot readily be removed. (b) Temporary - Structure which can readily be removed. Testing - A function involved in the examination of the qualities, performance or capabilities of a product, goods or material. Use - The specific purpose for which land or a building is designated, arranged, intended, or for which it is or may be occupied or maintained. The term "permitted use" or its equivalent shall not be deemed to include any nonconforming use. (a) Accessory Use - A use customarily incidental and subordinate to the principal use on the main building and located on the same lot with such principal use or main building. (b) Primary Use - The principal use conducted on the premises. Variance - The permission granted by the Zoning Hearing Board for an adjustment to some regulation which, if strictly adhered to, would result in an unnecessary physical hardship where the permission granted would not be contrary to the public interest, and would main- tain the spirit and original intent of the ordinance. Wholesale - Any procedure involving persons who in the normal course of business do not engage in sales to the general public. Yard - Specific open area (a) Front - a prescribed yard located between the ultimate right-of-way line.and the building. (b) Rear A prescribed yard located between the primary building.and the rear lot line. (c) Side - Prescribed yards located between the building and the side*lot lines. Zoning District - A definite area subject to specific regulations as prescribed by this ordinance. SECTION 104 COMMON REGULATIONS 104.1 Visibility at Intersections A clear-sight triangle shall be provided at all street and driveway inter- sections. Nothing shall be erected, placed or allowed to grow in a manner which obscures vision above the height of 21 feet and below .8 feet. At right-of-way intersections where both cartways exceed twenty (20) feet, an isosceles triangle.shall be established beginning at a point at the intersection of the two cartways adjacent to the property in question, a distance of twenty-five (25) feet parallel to each cartway. At right-of-way intersections where one or both cartways are twenty (20) feet or less, an isosceles triangle shall be established for a distance of ten (10) feet parallel to each cartway. 104.2 Removal of Natural Resources Such activities shall be permitted only where such uses are specifically permitted except as follows: As part of the construction of alteration of a building or the grading incidental to a building. In connection with the construction of alteration of a street or utility improvement. 104.3 Public Utilities The location of any structure, or other installation for the purpose of servicing any public utility, except common or contract carriers may be within any zoning district subject to the following regulations: The public utility shall file a plan with the municipal secretary indicating the location of all existing and proposed structures within the municipality. No such facility shall create a danger to the public safety of any resident of the municipality. The location of any building for the purpose of servicing any public utility except common or contract carriers may be located within any zoning district if a special permit is granted by the Zoning Hearing Board. SECTION 105 LOT RESTRICTIONS AND EXCEPTIONS 105.1 Open Area Restrictions All open areas shall be maintained with no portion of such area used as building area. The following shall be considered as open area, subject to applicable restrictions, on accessory uses or other supplemental use control. animal shelters and feeding arbors and trellises barbecues or outdoor fireplaces bays chimneys cornices and gutters cultivated field or gardens fences flagpoles and clothesline poles fountains manure or compost piles outdoor furniture playground equipment or games ponds and streams sewage disposal systems swimming. pools temporary _.garden structures and gazebos tree wells unroofed impervious surfaces water systems 105.2 Floor Area AT1 floor space shall be computed except basements, attics, elevator shafts, stairwells, open balconies, open porches, and accessory buildings shall be excluded. 105.3 Building Height Exceptions All buildings and structures shall be subject to those regulations except chimneys, spires, towers, elevator penthouses, tank antennas, flagpoles, provided that the height of any such projection above the base upon which it is fixed or attached shall not be greater than the shortest distance from such base to any lot line. SECTION 106 NON-CONFORMING USE REGULATIONS 106.1 Continuation Any unlawful use of buildings, structures, or lands existing at the effec- tive date of the original New Cumberland Zoning Ordinance No. 99, ' Ordinance No. 218, Ordinance No. 359, or authorized by a building permit issued prior thereto, may be continued although such use does not conform to the provisions of this ordinance. -12- 106.2 Enlargement Except as otherwise herein provided, no non-conforming use shall be enlarged or increased upon ground not presently owned, leased or under option to purchase at the time of the passage of Ordinance No.-359, adopted December 3, 1969. > A non-conforming use may be enlarged or increased upon contiguous ground. The enlargement must not further violate any area and bulk regulation imposed by the Zoning District in which it is located. 106.3 Damage or Destruction A n6n-conforming building which is partially destroyed by-an Act of God may be reconstructed so long as the basic structural elements in addition to foundations of the original building are regained. Any building which is totally destroyed by an Act of God may not be rebuilt except in conformance with the requirements of the existing zoning district. 106.4 Discontinuance If a non-conforming use of land ceases operations fora period of more than one year during which the owner of such property does not file a certifi- cate of intention to maintain such use with the Borough Secretary, then this shall be deemed to be an intent to abandon such use, and any subsequent use of the land shall conform to the regulations of this Ordinance. 106.5 Registration In order to facilitate the administration of this ordinance, the Borough Council shall cause to be maintained an accurate listing of these non-conforming uses which are not permitted as a use by right in the district in which they are located and for which no Special Exception has been granted. Such listing shall be a matter of public record and shall constitute sufficient notice to any transferee acquiring any right to use or own such property. 106.6 Changing a Non-Conforming Use A change from one non-conforming use to another non-conforming use shall not be permitted. _IZ_ SECTION 107 PLAN APPROVAL 107.1 Scope Construction of any building except one single-family detached dwelling, one single-family semi-detached'dwelling, one two-family detached ' dwelling, and other accessory use buildings shall be subject to a Plan Approval prior to the issuance of a Zoning Permit. This section may be used for residential developments at the option of the developer. 107.2 Application Procedures Applications shall be submitted to the Planning Commission, eight .(8) copies of the following material shall be supplied at least ten (10) days prior to the regularly scheduled Planning Commission meeting. A plot plan of the lot showing the location of all present and proposed buildings, drives, parking lots, curb cuts, other neces- sary construction features, and the location of all topographical features. Complete architectural and/or engineering design drawings for any proposed industrial, commercial, or residential multi-family building. In all" residential development, architectural and/or engineering design, drawings of the prototype of each different residential dwelling shall be required. A description of any commercial or industrial operations proposed in sufficient detail to indicate the effects of those operations in producing traffic congestion, noise, glare, air pollution, water pollution, vibration, fire hazards, safety hazards or the emission of any potentially harmful or obnoxious matter or radiation. Engineering and architectural design.drawings shall be provided for the handling of any of these problems. Designation of the matter by which sanitary sewage shall be disposed and water supply obtained, including the proposed location of any underground pipes. Engineering and architectural design drawings shall be provided for any plant or sewage disposal plant. A statement indicating all improvements to. be undertaken during the final phase of construction, including those which are to be com- pleted within one year from the issuance of a Plan Approval, as well as those being built at a later date. This statement shall also show a list of firms which are likely to be located within the development, their floor area and estimated number of employees. The owner or his agent shall attend the Planning Commission meeting at which his plans are to be reviewed. The person in attendance shall be totally familiar with the project and capable of answering any and all questions proposed by the Planning Commission. It is the responsibility of the applicant to apply for and obtain any additional licenses, permits, and approval required by any other governmental-agency. Evidence that such permits, licenses, and approvals have been granted must be submitted to the Planning Commission as part of the plan approval application.+ 107.3 Review The Planning Commission s.hall examine the material to determine that the proposed development conforms to this Ordinance. Within 30 days of its receipt, the Planning Commission shall make available its approval or the necessary modifications which must be provided for approval. Any appeal to a decision by the Planning Commission shall be made to the Zoning Hearing Board as prescribed by Appeals of this Ordinance. 107.4 Issuances All Plan Approvals passed by the Planning Commission shall be forwarded to the Zoning Officer and maintained•as a matter of public record. Notice of the decision shall be given to all parties in interest and any third parties requesting such notice. An approved Plan Approval shall continue in effect for one year from the date it is supplied to the Zoning Officer. If no construction work is undertaken by that date, a re-application shall be required. SECTION 108 ZONING PERMIT 108,1 Scope A Zoning Permit shall be required prior to any activity regulated by the scope of this ordinance. A Zoning Permit shall be required in each of the following instances: The construction of any building or permanent structure. A change in use from an existing use. Any exterior addition to any building or structure which expands its bulk. Any conversion which increases the number of dwelling units or addi- tional activity accessory to the primary use. All signs shall be required by Sign Permits of this ordinance which shall take place of a Zoning Permit. 108.2 Application Procedures • Applications shall be made in writing to the Zoning Officer on a form speci- fied for such purpose and shall contain the following: Map of the lot showing all dimensions and the exact locations on the lot of all proposed buildings, structures, or alterations; Statement indicating the existing uses, the proposed use, and the number of families the building is designed to accommodate; Description of any proposed building or addition; Statement explaining any proposed external alterations which. in- crease the height or area of any existing building.. 108.3 Review Procedure Permits shall be granted :or denied within 30 days from the date of application. All approved permits, together with.the accompanying information shall be a public record.. 108:4 Effect of a Plan ADDroval If a Plan Approval has been approved and after all necessary Commonwealth of Pennsylvania approvals and approvals from any other governmental agencies have been obtained, a Zoning Permit shall be issued immediately upon review of existing area and bulk restrictions of the applicable. Zoning District. No additional data need be provided, 108.5 Denial No Zoning Permit shall be granted unless the application conforms to the requirements of this ordinance. tf the denial is based upon an interpre- tation of this ordinance, the applicant shall be informed of h.is.rtght of appeal to the Zoning Hearing Board as provided by-Appeals of this ordi- nance. If the denial is based upon a violation of this ordinance, then the applicant shall be informed of his right to a revision of the ordi- nance by an-Amendment of this ordinance, or a liar i ance, of th.i s ordinance., nance.., 108.6 Duration of Permit. All Zoning Permits granted shall remain valid for a period of one year, If the applicant has not undertaken a significant portion of the work required, a subsequent Zoning Permit shall be necessary.. SECTION 109 FEES 109.1 Determination All fees shall be determined by the Borough Council and a schedule of such fees shall be made available to the general public., The Borough. Council shall be empowered to reevaluate th.e.fee schedule and make necessary alterations to it. Such alterations shall not be considered an amendment to this ordinance, and may be adopted at any public meeting of the Board by resolution. 109.2 Basis of Fee Structure Fees shall be sufficient to cover the costs of the required procedure imposed by this ordinance. 109.3 Time of Payment All fees shall be paid before any action required under this ordinance may be taken. Failure to do so shall be a vio,lati.on as deftned'by' Violations of this ordinance. , 109.4 Method of payment' Payment of all fees may be made by cash or personal check, 'When deemed advisable, a certified check may be required. SECTION 110 CERTIFICATE OF INTENTION 110.1 Scope A Certificate of Intention shall be required in all instances there a nonconforming use is discontinued- if the owner or operator of such* "uses desires to maintain such a nonconforming use. 110.2 Procedure The Zoning Officer shall maintain proper forms for the re9.1strW on of any Certificate of Intention. It shall be incumbent upon the= own.er'or applf-' cant to f i 1 e such 'a form wi th the Zon i ng Off i cer., 'The 'f t 11:69 of such form shall be considered a ministerial duty of the Zoning Officer who shall not refuse to accept the complete form, 110.3 Notification The proper adoption of this ordinance shall be considered effective notice to all owners or operators of non-conforming uses of the requirements for registration for the discontinuance of all non-conforming uses, 110.4 Filing The Zoning Officer shall maintain a separate file for all Certificates of Intention. 110.5 Duration Each Certificate of Intention shall be valid for a one-year period, It shall be incumbent upon the Zoning Officer to notify the registered applicant within one month of the expiration date, ARTICLE 200 - RESIDENTIAL DISTRICTS In addition to the specific intent for each residential district, the districts established in this regulation are intended to.achieve the following: To provide sufficient space in appropriate locations for residential development to meet 'the housing needs of the community. To protect residential areas against hazards created from uses more appropriately conducted in industrial and commercial districts. To group residential areas according to an overall Comprehensive Plan in those areas which can be effectively serviced by those public and private facilities deemed necessary so that they will become stable communities. SECTION 201 R-1=A RESIDENTIAL DISTRICT Specific Intent In addition. to the general goals listed in the preamble, it-is the purpose of this district to permit single family residential development which provides suburban housing with all public utilities of the type and the lot size now established in this area. 201.1 Use Regulations Uses by Right - Any R-1-A district land, building or premises shall be used by right for only the following: Single family detached dwelling Public recreational facilities 201.2 Area and Bulk Regulations - The following regulations shall be observed for each lot: Maximum Regulations. Building height 35 feet Building Coverage 25% Building plus paved coverage 40% Minimum Regulations Building setback line 30 feet Lot area 12,000 square feet Lot width - street frontage 100 feet Open area 75% Rear yard 10 feet Side yard 15 feet to 201.3 Corner Lot Restrictions On a corner lot, the side yard abutting the street shall have a width equal to the depth of the front yard required in the district.and shall be subject to all front yard requirements of this ordinance. , 201.4 Driveway 'Reg.ulations No driveway shall be constructed or maintained which does not meet the following requirements: Entrance to the street shall be at an angle of 75 degrees to 105 degrees with the intersecting street. The roadway between the right-of-way of the street and cartway shall be paved. All curb cuts shall be properly constructed to the satisfaction of the municipal engineer. Driveways shall have an all weather paved surface. In residential districts, driveways, at the right-of-way line shal'] have a minimum width of 10 feet and a maximum width of 16 feet, excluding any parking bay or turn-around, and the maximum curb cut shall be .18 feet. Driveways may be placed on the property line and shall be constructed with acceptable drainage. No driveways shall be constructed so that there is an access within 100 feet of another entrance or exit of the same property. No driveway shall be less than 10 feet in width. 201.5 Outdoor Storage Outdoor storage of any type shall not be permitted unless such storage is a part of the normal operations conducted on the premises, subject to the requirements of the prevailing zoning district. 201.6 Fences Within the R-1-A residential district, fences may be erected as follows: INTERIOR LOTS Within the front yard area a see-through open fence (i.e., a fence containing openings therein equal to 75% of the fence area) may be erected to a height not exceeding four feet. Within the yard area to the rear of the front building setback line, a solid or open fence or wall may be erected to a height not _1q_ exceeding four feet; Within the yard area to the rear of the rear building line, a solid or open fence or wall may be erected to a height not exceeding six feet; All interior lots will be subject to the requirements of Section 104.1 visibility at intersections; as applicable at cartway and driveway intersections. CORNER LOTS Within the front yard a see-through open fence (i.e., a fence containing openings therein equal to 75% of the fence area) may be erected to a height not exceeding four feet. Within the yard area to the rear of the front building setback line, a solid or open fence or wall may be erected to a height not exceeding four feet. Within the yard area to the. rear of the rear building line, a solid or open fence or wall may be erected to a height not exceeding four feet on those sides adjacent to a Borough right-of-way. Within the yard area to the rear of the rear bui-ld_ing line, a solid or open fence or wall may be erected to a height not exceeding six feet on those sides not adjacent to a borough right-of-way. All corner lots will be subject to the requirements of Section 104.1 visibi lity at intersections; as applicable at cartways and driveway intersections. ALL LOTS Other fences may be erected in residential districts up to a maximum height of 8 feet behind the rear yard line. These fences shall not be closer than 15 feet from any of the side and rear lot lines and may encompass an area not greater than 400 square feet. Fence regulations for the non-conforming uses in residential districts will be the same as for residential districts. 201.7 Off-Street Parking Regulations For residential uses, a parking space for one vehicle shall be equal to at least 200 square feet with dimensions of at least ten by twenty feet for single family residential uses. 201.8 Residential Parking Requirements At least one (1) off-street parking space shall be provided for each single family dwelling unit. 201.9 Residential Accessory Use Regulations. Animal Shelters No structure shall be a part of any residential building. No structure shall be located within ten (10) feet of any.property line. No-structure shall be permitted between the building setback line and the right-of-way line. Detached Garaqe No temporary structure shall be permitted. No structure shall be within 10 feet of any street line or property line. No structure shall be permitted between the building setback line and the street line. Greenhouse No structure shall be within ten (10) feet of any property line. No structure shall. be permitted between the building setback line and the street line. Other Outbuildings Maximum height - ten (10) feet No structure shall be attached to a building. No structure shall be within ten (10) feet of any property line. No structure shall be_permitted between the building setback line and the street line. Swimming Pools No permanent structure shall be permitted without a filtering system utilizing .. chlorinated water. No permanent structure shall be permitted unless a permanent continuous fence which is at least 4 feet minimum in height completely surrounds the facility. No structure shall be within ten (10) feet of any property line. No structure shall be permitted between the building setback line and the street line. Tennis Court No facility shall be permitted unless it is protected by a permanent fence ten (1) feet in height behind each baseline extending ten (10) feet beyond the playing area in each direction. No facility shall be permitted within ten (10) feet of any property line. No facility shall be located in between the building setback line and the street line. Patios, Paved Terrace, Open Porch None of the above shall be permitted between the building setback line and the street line. No impermeable surface shall be within five (5) feet of any property line, except a driveway or walkway. 201.10 Flood Plain Regulations All applicable flood plain regulations shall be complied with. ARTICLE 200 RESIDENTIAL DISTRICTS In addition to the specific intent for each residential digtrict, the districts established in this regulation are intended to achieve the following: To provide sufficient space in appropriate locations for resi- dential development to meet the housing needs of the community. To protect residential areas against hazards created from uses more appropriately conducted in industrial and commercial dis- tricts. To group residential areas according to an overall Comprehensive Plan in those areas which can be effectively serviced by those public and private facilities deemed necessary so that they will become stable communities. SECTION 202 R-1" RESIDENTIAL DISTRICT Specific Intent In addition to the general goals listed in the preamble, it is the purpose of this district to permit single-family residential development which provides suburban housing with all public utilities. Non-residential uses are restricted in this area. 202.1 Use Regulations Uses by Right - Any R-1 district land, buildings, or premises shall be used by right for only one or more of the following: Single family detached dwelling Church School Public Library Public Museum Municipal building with the exception of sewage disposal plant, garbage incinerator, warehouse, garage, gasoline filling station, shop. Public recreational facilities 202.2 Area and Bulk Regulations - The following regulations shall be observed for each lot: Maximum Regulations Building Height 35 feet Building Coverage 30 percent Building plus paved coverage 40 percent Minimum Regulations Building Setback Line 25 feet Lot Area 5,000 sq ft Lot Width - street frontage 50 feet Open Area 70 percent Minimum Regulations (continued) Rear Yard 5 feet Slde Yard (each. s i-de) 5 feet 202.3 Corner Lot Restrictions On a corner lot, the side yard abutting the street shall have a width equal to the depth of the front yard required in the district and shall be subject to all front yard requirements of this ordinance. 202.4 Driveway Regulations No driveway shall be constructed or maintained which does not meet the following regulations: Entrance to the street shall be at an angle of 75 degrees to 105 degrees with the intersecting street. The roadway between the right-of-way of the street and cartway shall be paved. All curb cuts shall be properly constructed to the satisfaction of the _ municipal engineer. Driveways shall have an.all-weather paved surface. In residential districts, driveways, at the right-of-way line shall have a minimum width of 10 feet and a maximum width of 16 feet, excluding any parking bay or turn-around, and the maximum curb cut_ shall be 18 feet. Driveways may be placed -on the property line and shall be constructed with acceptable drainage. No driveways shall be constructed so that there is an access within 100 feet of another entrance or exit of the same property. No driveway shall be less than 10 feet in width. 202.5 Outdoor Storage Outdoor storage of any type shall not be permitted unless such storage is a part of the normal operations conducted on the premises, subject to the requirements of the prevailing zoning district. 202.6 Fences Within the residential districts, fences may be erected as follows: INTERIOR LOTS Within the front yard area a see-through open fence (i. e., a fence containing openings therein equal to 75% of the fence area) may be erected to a height notexceeding four feet. Within the yard area to the rear of the front building setback line, a solid or open fence or wall may be erected to a height not exceeding four feet; Within the yard area to the rear of the rear building line, a solid or open fence or will may be erected to a height not exceeding six feet; All interior lots will be subject to the requirements of Section 104.1 visibility at intersections; as applicable at cartway and driveway intersections. f nRNFR I nTC Within the front yard area a see-through open fence (i.e., a fence con- taining openings therein equal to 75% of the fence area) may be erected to a height nct exceeding four feet. Within the yard area to the rear of the front building setback line, a solid or open fence or wall may be erected to a height not exceeding four feet. Within the yard area to the rear of the rear building line, a solid or open fence or wall may be erected to a height notexceeding four feet on those sides adjacent to a Borough right-of-way. _ Within the yard area to the rear of the rear building line, a solid or open fence or wall may be erected to a height not exceeding six feet on those sides not adjacent to a Borough right-of-way. All corner lots will be subject to the requirements of Section 104.1, visibility at intersections; as applicable at cartway and driveway intersections. ALL LOTS Other fences may be erected in residential districts up to a maximum height of 8 feet behind the rear yard line. These-fences shall not be closer than 15 feet from any of the side and rear lot lines and may encompass an area not greater than 400 square feet. Fence regulations for the non-conforming uses in residential districts will be the same as for residential districts. 202.7 Off-Street Parking Regulations For residential uses, a parking space for one vehicle shall be equal to at least 200 square feet with dimensions of at least ten by twenty feet for single family residential use. 202.8 Residential Parking Requirements At least one (1) off-street parking space shall be provided for each single family dwelling unit. Other approved uses shall comply with Section 302.12. 202..9 Residential Accessory Use Regulations - Animal Shelters No structure shall be apart of any-residential building. No structure shall be located within five (5) feet of any property line. No structure shall.-be permitted between the building setback line and the right-of-way. Detached Garage No temporary structure shall be permitted. No structure shall be within five (5) feet of any street line or property line. No structure shall be permitted between the building setback line and the street line. Greenhouse No structure shall be within five (5) feet of any property line. No structure shall be permitted between the building setback line and the street line. Other Outbuildings Maximum height - ten (10) feet No structure shall be attached to a building. No structure shal•1 be within five (5) feet of any property line. No structure shall be permitted between the building setback and the street line. Swimming Pools No permanent structure shall be permitted without a filtering system utilizing chlorinated water. No permanent structure shall be permitted unless a permanent continuous fence which is at least four (4) feet minimum in height completely surrounds the facility. No structure shall be within five (5) feet of any property line. No structure shall be permitted between the building setback line and the street line. Tennis Court No facility shall be permitted unless it is protected by a permanent fence ten (10) feet in height behind each baseline extending ten (10) feet beyond the playing area in each direction. No facility shall be permitted within ten *(10) feet of any property line. No facility shall be located in between the building setback line and the street line. Patios, Paved Terrace, Open Porch None of the above shall be permitted between the building setback line and the street line. No impermeable surface shall be within five (5) feet of any property line except a driveway or walkway. • 202.10 Flood Plain Regulations All applicable flood plain regulations shall be complied with. -25- ARTICLE 200 RESIDENTIAL DISTRICTS In addition to the specific intent for each residential district, the districts established in the regulation are intended to achieve the following: To provide sufficient space. in appropriate locations for resi- dential development.to meet the housing needs of the community. ' To protect residential areas against hazards created from uses more appropriately conducted in industrial and commercial districts. To group residential areas according to an overall Comprehensive Plan in those areas which can be effectively serviced by those public and private facilities deemed necessary so that they will 'become stable communities. SECTION 203 R-2 RESIDENTIAL DISTRICT Specific Intent In addition to the general goals listed in the preamble, it is the purpose of this district to permit residential development which provides urban housing in older residential areas. 203.1 Use Regulations Uses by Right - Any R-2 district land, buildings, or premises shall be used by right for only one or more of the following: Single family detached dwelling Single family semi-detached dwelling Two family detached dwelling Two family semi-detached dwellings (4 units maximum) Apartments not to exceed 3 stories Church School Public Library. Public Museum Municipal building with the exception of sewage disposal plant, garbage incinerator, warehouse, garage, gasoline filling station, shop. Public recreational facilities 203.2 Area & Bulk Regulations - The following regulations shall be observed for each lot: Maximum Regulations Other than apartments Apartments *Building height 40 feet 3 stories Building coverage 30% 30% Building plus Paved Coverage 55% 60% *For each 2 feet of setback provided which results in an increase above the required open area, the building height may be increased by one (1) foot. Minimum Regulations Other than apartments Building setback-line Lot Area Per construction site Per dwelling unit Lot width - street frontage Rear yard Side yard (each side) Open area 25 feet 5,000 1,750 50 5 5 70% Apartments - 25 feet 5 , 000 1,650 50 5 5 70% 203:3 Corner Lot Restrictions On a corner lot, the side yard abutting the street shall have a width equal to the depth of the front yard required in the district and shall be subject to all front yard requirements of this ordinance. 203.4 Driveway Regulations No driveway shall be constructed or maintained which does not meet the following regulations: Entrance to the street shall be at an angle of 75 degrees-to 105 degrees with the intersecting street. The roadway between the right-of-way of the street and cartway shall.be paved. All curb cuts shall be properly constructed to the satisfaction of the municipal engineer. Driveways shall have an all-weather paved surface. In residential districts, driveways at the right-of-way line shall have a minimum width of 10 feet and a maximum width of 16 feet, excluding any parking bay or turn-around, and the maximum curb cut shall be 18 feet. Driveways may be placed on the property line and shall be construc- ted with acceptable drainage. No driveways shall be less than 10 feet in width. 203.5 Outdoor Storage Outdoor storage of any type shall not permitted unless such storage is a part of the normal operations conducted on the premises, subject to the requirements of the prevailing zoning district. 203.6 Fences Within the residential districts, fences may be erected as follows: INTERIOR LOTS Within the front yard area a see=through open fence (i. e., a fence _ containing openings therein equal to 75% of the fence area) may be erected to a height not exceeding four feet. Within the yard area to the rear of the front building setback line, a solid or open fence or wall may be erected to a height not exceed- ing four feet. Within the yard area to the rear of the rear building line, a solid or open fence or wall may be erected to a height not exceeding six feet. All interior lots will be subject to the requirements of Section 104.1 visibility at intersections; as applicable at cartway and driveway intersections. CORNER LOTS Wi thi n the front yard area a see-through open fence ( i . e. , a fence . containing openings therein equal to 75% of the fence area) may be erected to a height not exceeding four feet. Within the yard area to the rear of the front building setback line, a solid or open fence or wall may be erected to a height not exceeding four feet. Within the yard area to the rear of the rear building line, a solid or open fence or wall may be erected to a height not exceeding four feet on..those sides adjacent to a Borough right-of-way. Within the yard area to the rear of the rear building line, a solid or open fence or wall may be erected to a height not exceeding six feet on those sides not adjacent to a Borough right-of-way. All corner lots will be subject to the requirements of Section 104.1, visibility at intersections; as applicable at cartway and driveway intersections. ALL LOTS Other fences may be erected in residential districts up to a maximum height of 8 feet behind the rear yard line.. These fences shall not be closer than 15 feet from any of the side and rear. lot lines and may encompass an area not greater than 400 square feet. Fence regulations for the non-conforming uses in residential districts will be the same as for residential districts. 203.7 Off-Street Parkinq Regulations For residential uses, including apartments, a parking space for one vehicle shall be equal to at least 200 square feet with dimensions of at least ten by twenty feet for single family residential and apartment uses. Other approved uses shall comply with Section 302.12_ 203.8 Residential Parkin Requirements At least one 1 off-street parking space shall be provided for each single • family dwelling unit. Two (2) off-street parking spaces shall be provided , for each dwelling unit of multiple or apartment type. No area located within any street line shall be computed in determining off-street parking requirements.. Spaces may be located parallel or perpendicular to each other. Driveway area may be used to compute the required spaces only when individual driveways are provided for each dwelling; garages or carports shall not be required in any Zoni-n.g District unless specified by the individual Zoning District. All parking compounds servicing more than two dwelling units shall have marked parking spaces. 203.9 Residential accessory Use Regulations Animal Shelters No structure shall be a part of any residential building. No structure shall be located within five (5) feet of any property line. No structure shall be permitted- between the building set-back line and the right-of-way line. Detached Garage No temporary structure shall be permitted. No structure shall be within five (5) feet of any street line or property line. No structure shall be permitted between the building setback line and the street line. Greenhouse No structure shall be within five (5) feet of any property line. No structure shall be permitted between the building setback line and the street line. Other Outbuildings Maximum height - ten (10) feet No structure shall be attached to a building. No structure shall be within five (5) feet of any property line. No structure shall be permitted between the building setback line and the street line. Swimming Pools No permanent structure shall be permitted without a filtering system utilizing chlorinated water. No permanent structure shall be permitted unless a permanent continuous fence which is at least four (4) feet minimum in height completely surrounds the facility. No structure shall be within five (5) feet of any property line. No structure shall be permitted between the building setback line and the street line. Tennis Courts No facility shall be permitted unless it is protected by a permanent • fence ten (10) feet in height behind each baseline extending ten (10) feet beyond playing area in each direction. No facility shall be permitted within ten (10) feet of any property line. No facility shall be located in between the building setback line and the street line. Patios, Paved Terrace, Open Porch. None of the above shall be permitted between the building setback line and the street line. No impermeable surface shall be within five (5) feet of any property line, except a driveway orlwalkway. Development Expansion No off-street parking plan shall be approved where a portion of the lot is to remain undeveloped unless an adequate area for parking is reserved for such future development. Such reservation can be made by suitable deed restrictions. The Planning Commission may require additional off-street parking when in their judgment more space will be.required for potential increases in customer usage. 203.10 Residential Conversion Controls Designation of Area Approval shall be obtained from the Planning Commission upon submission of the following: A sketch of the lot in question showing all dimensions and necessary off-street parking spaces. A sketch of the interior floor plans for each floor shoring. the use of each room. Photographs of the front, rear, and sides (if open) of the building. Review Standards in rendering a decision under these controls, the Planning Commission shall consider the following items: The Comprehensive Plan Existing conditions within the neighborhood itself. Street traffic and traffic patterns The adequacy of means of ingress and egress. The suitability and size of the proposed rooms to be used. The potential danger of fire and other elements of public safety. Surface drainage Review Procedures The Planning Commission shall review all applications under this section subject to the requirements of the Planning Commission. 203.11 flood Plain Regulations All applicable flood plain regulations shall be complied with. -30- ARTICLE 300 COMMER.CtAL DISTRICT SECTION 301 C71 COMMERCIAL DISTRICT Specific Intent In addition to the general goals listed in the preamble, it is the pur- pose of this district to encourage commercial development which will benefit the older commercial sections of the municipality and along major roadways 301:1 Use Regulations Uses by Right - Any C-1 district land, building or premises shall be used by right for only one or more of the following: Financial institutions, business, and professional offices. Electric and telephone public utility transmission and distribution facilities, substations, water and sewage pumping stations, and reservoirs. Mortuary and undertaking establishments Municipal buildings, municipal uses, and firehouses. Personal service shops such as barbers, beauty parlors, tailors, shoe repair, dry cleaning, and coin operated laundromats, upholstery, cabinet-making furniture repair, printing, electricians, plumbing, heating, air conditioning, and vent.i.lating. Public and private schools conducted for gain or profit. Railway or bus passenger stations, telegraph offices, and express offices. Restaurant, tea rooms, cafes, and other places serving food or beverage. Retail stores for the sale of goods such as food, drugs, confectionery, hardware, bakery products, clothing, household appliances, flowers, and houseplants. Amusement enterprises such as theaters, billiard or pool parlors, bowling alleys, skating rinks or similar uses or places of assembly, private clubs, and lodges. Florists and nurseries, provided that all incidental equipment and supplies including fertilizers and empty cans are kept within the building. Hotels and Motels Medical and dental clinic laboratories Parking garages Churches Post Offices Car washes Dwelling as a use above the first floor only. Any production or processing of retail goods sold on the premises. Public recreational facilities. Prohibited Uses Any building may not be erected or used, and a lot may not be occupied for any of the following purposes: Businesses using open air as storage Used car lots, recreational vehicle mobilehome sales Gasoline service s.tations Motor vehicip- repair shops 301.2 Area and Bulk Regulations - The following regulations shall be observe or each lot unless specified. Maximum Regulations *Building Height 40 feet Floor area ratio 2.0 Building coverage 80 percent Building plus paved coverage 80 percent *For each 1% decrease in Building-Coverage resulting in a 1% increase in open Area,. the Building Height may be increased by one (1) foot. Minimum Regulations Street Frontage 15 feet Setback - building setback line -0- Building Area (First Floor) 600 sq ft Area per dwelling unit 600 sq ft Open Area 20 percent Yard requirements Side yard per side -0- Rear yard per side 5 feet 301.3 Performance Standards No building shall be located within five (5) feet of any residential district line except where such line is within a public right-of-way. No heat created by any use shall exceed beyond its lot line. All uses of land, buildings, and structures for industrial processes. that may be noxious or. injurious by reason of the production or emission of dust, smoke, refuse matter, odor, gas fumes, noise, vibration, or similar substances or conditions shall be prohibited. 301.4 Corner Lot Restrictions On a corner lot, the side yard abutting the street shall have a width equal to the depth of the front yard required in the district and shall be sub- ject to all front yard requirements of this ordinance. 301.5 Driveway Regulations No driveway shall be constructed or maintained which does not meet the following regulations: Entrance to the street shall be at an angle of 75 degrees to 105 degrees with the intersecting street. ' The roadway between the right-of-way of the street and cartway shall be paved- All curb cuts shall-be properly constructed to the satisfaction of the municipal engineer. Driveways shall have an all-weather paved surface. In commercial district driveways, at the right-of-way line, there shall be a minimum width of 16 feet and a maximum width of 30 feet, excluding any parking bay or turn-around, and the maximum curb cut shall be 35 feet. Driveways may be placed on the property line and shall be constructed with adequate drainage. No driveways shall be constructed so that there is an access within 100 feet of another entrance or exit of the same property. No driveway shall be less than 10 feet in width. 301.6 Outdoor Storage Outdoor storage of any type shall not be permitted unless storage is a part of the normal operations conducted on the premises, subject to the requirements of the prevailing zoning district. 301.7 Fences Fences may be erected to a maximum height of eight (8) feet. 301.8 Design Standards Screening A planted visual barrier or fence screening shall be provided along any lot line adjacent to a residential district except where lots are sepatated by a public right-of-way. A screen shall be a material of sufficient height and density to reasonably conceal the structures and uses from view of the adjacent residential district. Storage All storage shall be completely screened from view from any public right-of-way and any residential use. All organic rubbish or storage shall be contained in air-tight, verminproof containers. Landscaping Any part or portion of a site which is not used for building area or paved area shall be planted with an all-season ground cover or mulch and shall be landscaped according to an overall plan and in keeping with the natural surroundings. Any single parking area with 50 or more spaces shall utilize at least 5 percent of its area in landscaping, which shall be-in addition to open area requirements of the Zoning District. Access and Traffic Control No driveway or private street servicing a commercial or industrial use shall be located within 10 feet from the intersection-of any right-of-way lines. When any driveway or street shall provide access for more than 100 parking spaces, the approval of the design shall be subject to review by the members of a municipal governing body charged with the administration of streets and public safety. No design shall be approved which is likely to create substantial traffic hazards endangering the public safety. Safety requirements which may be imposed in such a review shall include traffic control devices, acceleration lanes, turning lanes, traffic and lane markings, and signs. Lighting All parking areas, driveways and/or streets shall be provided with a lighting system which shall furnish a minimum of 35 footcandles at any point. 301.9 Loading Regulations Determination of Need When required by Plan Approval of this ordinance, the applicant shall supply information relating to the estimated truck traffic serving the facility to include projections based upon potential expansion. 301.10 Commercial Accessory Use Regulations Garages Shall be designed to conform with the main building and shall be set back to the requirements of the applicable zoning district. Other Accessory Use Controls The area and bulk regulations of the prevailing Zoning District shall apply except where the regulations of this section are more strict. Facilities designed to provide services to the entire community shall be permitted as accessory uses even though there is no direct relationship to the primary use. No activities shall be permitted which create a public nuisance and/or interfere with the use of the adjacent lots. Nothing in this section shall limit other temporary uses so long as they ARTICLE 300 COh{MeAC1AL DISTRICT SECTION 302 C-2 COMMERCIAL DISTRICT Specific Intent In addition to the general goals listed in the preamble, it is the purpose of this district to provide professional facilities to serve primarily the business needs not necessarily directly related to the Central Business District, but which require adequacy to both intensive commercial and residential uses. A third purpose is to provide space for parking areas which are directly related to and support the Central Business District. A final purpose is to provide an area for high intensity residential development in the form of apartments and in some instances to act as a buffer between existing residential areas and the Central Business District. 302.1 Use Regulations Uses by Right Any C-2 district land or building-shall be used by right for any one or more of the following: Financial institutions, business, and professional offices Electric and telephone public utility transmission and distribution facilities, substations, water and sewer pumping station and reservoirs Mortuary and undertaking establishment Public and private schools conducting for gain or profit Railway or bus passenger station, telegraph office, and express office Medical or dental clinic laboratories Parking lots and/or parking garages Post offices Personal service shops used frequently or daily to weekly basis such as barber shop, beauty parlor. Two-family semi-detached dwelling (maximum 4 units) Multi-family dwellings Dwelling as a use above the first floor only Public recreational facilities Uses by Special Exception The following uses shall be permitted as a special exception when authorized by the Zoning Hearing Board: Private sale of goods, prepared foods and/or services Restaurants, tea rooms, cafes, and other places serving food or beverage Retail stores for the sale of goods such as food, drugs, confectionery, hardware, bakery products, clothing, household appliances, flower and house plants. Expansion of pre-existing non-conforming uses The additan of one or more dwelling units to a pre-existing or non-conforming commercial use- -36- are accessory to the primary use of the land and do not create a danger to the public health or safety and/or welfare of the .community. _ 301.12 Flood Plain Regulations All applicable flood plain regulations shall be complied with.. Prohibited Uses A building may not be erected or used, and a lot may not be occupied for any of the following purposes: Businesses using open air as storage for sale or manufacturing of goods ' Used oar lots, recreation vehicles or mobilehome sale. Gasoline service stations Motor vehicle repair shops Drive-in restaurants - drive-in restaurant is defined as a restaurant where food may be consumed outside the building, in or outside an automobile 302:2 Area and Bulk Regulations The following regulations shall apply for each lot excluding lots under High Rise Apartments of this ordinance. Maximum Regulations *Building height 40 feet Floor area ratio 2..0 Building coverage 50 percent Building plus paved coverage 15 percent *For each 1% decrease in building coverage resulting in a l% increase in Open Area, the building height may be increased by one (1) foot. Minimum Regulations Building setback line 25 feet Improvement setback line 10 feet Lot width - street frontage 50 feet Open area 50 percent Yard Requirements Side yard per side 5 feet Rear yard 5 feet 302.3 Performance Standards No building shall be located within five (5) feet of any residential district line except where such line is within a public.right-of-way. No heat created by the use shall exceed beyond its lot line. All uses of land, building, and structures shall be prohibited that may be noxious or injurious by reasons of the production of.emiss.ion of dust, smoke, refuse matter, odor, gas fumes, noise, vibration or similar substance or condition. All uses must be conducted within a building, including the display of goods. 302.4 Corner Lot Restrictions On a corner lot, the side yard abutting the street shall have a width equal to the depth of the front yard required in the district and shall be subject to all front yard requirements of this ordinance. 302.5 Driveway Regulations No driveway shall. be constructed or maintained which does not meet the following regulations: Entrance to the street shall be at an angle of 75 degrees to 105 degrees with the intersecting street. The roadway between the right-of-way-of the street and cartway shall be paved. All curb cuts shall be properly constructed to the satisfaction of the municipal engineer. Driveways shall have an all-weather paved surface. In commercial district driveways, at the right-of-way line, shall have a minimum width of 16 feet and a maximum width of 30 feet, excluding any parking bay or turn-around, and the maximum curb cut shall be 35 feet. Driveways may be placed on the property line and shall be constructed with adequate drainage. No driveways shall be constructed so that there is an access within 100 feet of another entrance or exit of the same property. No driveway shall be constructed without adequate provisions for drainage. No driveway shall be less than 10 feet in width. 302.6 Outdoor Storage Outdoor storage of any type shall not be permitted unless such Storage is a part of the normal operations conducted on the premises, subject to the requirements of the prevailing zoning district. 302.7 Fences Fences may be erected to a maximum of 8 feet. 302.8 Design Standards Screening A planted visual barrier or fenced screening shall be provided along any lot line adjacent to a residential district except where lots are separated by a public right-of-way. A screening shall be a material of sufficient height and density to reasonably conceal the structures and uses from view of the adjacent residential district. Storage All storage shall be completely screened from view from any public right-of-way and any residential use. All organic rubbish or storage shall be contained in air-tight, verminproof containers. Landscaping Any part or portion of site which is not used for building area or paved area shall be planted with an all-season ground cover or mulch and shall be landscaped according to an overall plan and in keeping with the natural surroundings. Any single parking area with 50 or more spaces shall utilize at least 5 percent of its area in landscaping, which shall be in addition to open area requirements of the Zoning District. Access and Traffic Control No driveway or private street servicing a commercial or industrial use shall be located within 10 feet from the intersection of any right-of-way lines. When any driveway or street shall provide access for more than 100 parking spaces, the approval of the design shall be subject to review by the members of a municipal governing body charged with the administration of streets and public safety. No design shall be approved which is likely to create sub- stantial traffic hazards endangering the public safety. Safety requirements which may be imposed in such a review shall include traffic control devices, acceleration lanes, turning lanes, traffic and lane markings, and signs`. Lighting All parking areas, driveways and/or streets shall be provided with a lighting system which will furnish a minimum of 35 footcandles at any point. 302.9 Loading Regulations Determination of Need When required by Plan Approval of this ordinance, the applicant shall supply information relating to the estimated truck traffic serving the facility to include projections based on potential expansion. 302.10 Accessory Use Regulations Garages Shall be designed to conform with the main building and shall be set back to the requirements of the applicable zoning district. Other Accessory Use Controls The area and bulk regulations of the prevailing Zoning District shall apply except where the regulations of this section are more strict. Facilities designed to provide services to the entire community shall be permitted as accessory uses even though there is no direct relationship to be primary use. No activities shall.-be permitted which create a public nuisance and/or interfere with the use of the adjacent lots. Nothing in this section shall limit other temporary uses so long as they are accessory to the primary use of the land and do not create a danger to public health or safety and/or welfare of the community. 302.11 Residential Conversion Controls Des f gna t i on of Area Approval shall be obtained from the Planning Commission upon submission of the following: A sketch of the lot in question showing all dimensions and necessary off-street parking spaces. A sketch of the interior floor plans for each floor showing the use of each room. Photographs of the front, rear, and sides (if open) of the building. Review Standards lh filing a recommendation under these controls, the Planning Commission shall consid.er the following items: The Comprehensive Plan Existing conditions within the neighborhood itself Street traffic and traffic patterns The adequacy of means of ingress and egress The suitability and size of the proposed rooms to be used The potential danger of fire and other elements of public safety Surface drainage Review Procedures The Planning Commission shall review all applications under this section subject to the requirements of the Planning Commission. 302.12 Off-Street Parking Regulations Standards For residential uses, including apartments, a parking space for one vehicle shall be equal to at least 200 square feet with dimensions of at least ten by twenty feet for single family residential and apartment uses. For commercial, industrial, public and semi-public uses, parking space for one vehicle shall be equal to at least 350 square feet for the purpose of computing car spaces including stall and driveways, and shall have a stall of at least ten by twenty feet in size. Commercial Parking Review In all commercial uses requiring off-street parking, the applicant shall submit a plan under'Plan Approval of this ordinance to the Planning i Commission with an attached statement indicating the means by.which adequate off-street parking will be provided. This statement shall be considered as a part of the material required before a Plan Approval may be issued. Off-Street Parking Space Requirements Uses i. 2. 3• 4. 5. 6. 7. 8. 9. 10. 1L 12. 13. 14. 15. 16. 17. 18. 19. Automobile Laundry Automobile Sales and Service Garages Banks or Professional Offices Bowling Alleys Churches and Schools Community buildings & social halls Dance Halls,. Swimming Pools, Roller Rinks, Clubs, Lodges, and other similar places and other commerci- al bu•i l d i ng s Driving Ranges and Miniature Golf Food Supermarkets Funeral Homes, Mortuaries Furniture or Appliance stores Hospitals, Nursing, and Convalescing Homes Hotels, Motels, Tourist Houses, Boarding, and Lodging Houses Manufacturing Plants, Research or Testing Laboratories, Bottling Plants Medical and Dental Offices Multiple Dwellings Restaurants, Beer Parlors, and Night Clubs Retail Stores and Shops Rooming Houses Required Parking Spaces 5 for each laundry machine 1 for each 400 sq ft of floor area 1 for each 200 sq ft of floor area 5 for each alley 1 for each 3.5 seats in an auditorium or 1 for each 17 classroom seats, whichever is greater 1 for each 100 sq ft of floor area 1 for each 100 sq ft of floor area or of water area in swim Wing pool 1 for each tee 1 for each 200 sq ft of floor area 5 for each parlor 1 for each 200 sq ft of floor area 1 for each 3 beds, plus 1 for each employee 1 space for each guest room 1 for each 1,000 sq ft of floor area, plus 1 for each 2 employees in the maximum working shift. The total parking area shall not be less than 25% of the building floor area 5 spaces for each doctor or dentist 2 spaces per dwelling unit 1 for each 2.5 seats 1 for each 120 sq ft of floor area 1 for each 1 bedroom 20. Service Stations 21. Single family dwelling 22. Sports Arenas, Auditoriums, Theaters, Assembly Halls 23. Trailer or Monument.. Sales, or Auctions 24. Wholesale Establishments or Warehouse 2 for each service bay 1 for each dwelling unit 1 for each 3.5 seats 1 for each 2,500 Sq ft of lot area 1 for each 2 , employees on maxi.mum shift. The total parking area shall be not less than 25% of the building floor area. 302.33 High Rise Apartment Use Regulations Apartment Uses Permitted - Apartments over five (5) stories only in C-2. This subsection applies only to apartments or multiple dwellings which are in excess of forty (40) feet in height. Apartment or Multiple Dwelling - Area and Bulk Regulations All area and bulk regulations of the prevailing Zoning District shall apply except for the following: Maximum Regulations Building Height 100 feet Floor Area Ratio 1.0 Lot Coverage (Building only) 20 percent Paved Area 60 percent Number of dwelling units per gross acre - the maximum number of dwelling units per gross acre for buildings of over three stories in height with elevator service shall be eighteen (18). The Planning Commission may allow an increase in the permitted gross density under the following standards. 1. For the provision of improved common open space or for distinctive- ness and excellence in site layout, architectural design and land- scaping; a five (5) percent increase shall be permitted. 2. For the provision of covered parking spaces designed as partial or below grade units and incorporated within the principal building or buildings a ten percent increase shall be permitted. Minimum Regulations Open Area 80 percent Street frontage (along a public street) 50 feet Lot Size 10,000 square ft Distance between buildings or groups of attached buildings - No part of any building, or groups of attached buildings, shall be nearer than twenty- five (25) feet to any other building, or group of attached buildings, and no portion of the front or rear of any buildings, or groups of attached buildings, shall be nearer than eighty (80) feet to any part of another building, or groups of attached buildings. No more than three buildings may be attached to one another. 1. Elevator Service - Elevator service shall be provided in apartment struc- tures of more than three stories. • High Rise Apartment Commercial Restrictions Uses Permitted The following uses shall be permitted: Barber Shops' Beauty Shops Business Offices Administrative Activities Professional Offices Restaurants, tearooms, cafes, and other places serving food or beverage or beverage Performance Standards The following regulations shall be observed: Retail stores for the sale of goods such as food, drugs, confectionery, hardware, bakery products, clothing, household appliances, flower and houseplants No single commercial use shall exceed 1,500 square feet Co mercial Requirements of Off-Street Parking Requirements, of this ordinance shall be complied with. 302.14 Flood Plain Regulations All applicable flood plain regulations shall be complied with. ARTICLE 400 INDUSTRIAL DISTRICTS SECTION 401 INDUSTRIAL DISTRICT 1-1 In addition to the specific intent for each district, the district estab- lished in this regulation is intended to achieve the following: To provide sufficient space for the types of industrial uses deemed desirable.to the general welfare of the community. To protect industrial development against intrusive uses which are incampatible with it so as to deter future industrial expansion. To group types of industrial development in areas in which the uses are compatible and will be accessible to necessary public and private facilities to service their needs. Specific intent - In addition to the general goals listed in the preamble, it is the purpose of this district to provide for restricted industrial uses which can be accommodated near residential and commercial uses. 401.1 Uses Regulations Uses by Right - Any industrial district land, building, or premises shall be used by right for one or more of the following: Administrative activities Any production, processing, cleaning, testing, repair, and distribution of materials, goods, and products Public recreational facilities Uses by Special Exception - The following use shall be permitted as a Special Exception when authorized by the Zoning Hearing Board. All uses by right as approved in the C-1 Zone. 401.2 Area and Bulk Regulations - The following regulations shall be observed for each lot unless specified: Maximum Regulations Building Height 100 feet Building Length 240 feet Floor Area Ratio 2.0 Building Coverage 60 percent Parking Perimeter Radius 200 feet Building plus paved coverage 90 percent Minimum Regulations Lot Area 7,000 sq ft Open Area 40 percent Yard Requirements Interior Lots: front 10 feet side none rear 10 feet Exterior lots front 10 feet side (adjacent to a 10 feet street or alley) rear (adjacent to a 10 feet street or alley) 401.3 Performance Standards - The following regulations shall be ob- served for each lot: All material being stored such as waste paper, rags., scrap metal, machinery, or vehicles not in running condition shall be screened or fenced from view from a public street or an adjacent non-indus'- trial property. No heat or glare shall be perceptible beyond the lot boundaries. No emission of odorous gases or other odorous matter which is perceptible at any lot line shall be permitted. It shall be unlawful for any person, firm, or corporation to permit the emission of any smoke f.rom any source whatever to a density greater than that density described as No.l on Ringleman Chart, provided that the following exceptions shall be permitted: smoke, the shade or appearance of which is equal to but not aggregating four (4) minutes in any thirty (30) minutes. For the purpose of grading the density of smoke, the Ringleman Chart currently in use by the United States Bureau of Mines shall be the standard. However, the Umbrascope readings of smoke densities may- be used when correlated with Ringleman's Chart. Machines or operations which cause vibration shall be permitted, bust no operation shall cause a displacement exceeding .003 of one (1) inch as measured at any point beyond the property line. Vibration shall be measured with a standard three component measuring system. A three component measuring system is a device for record'tfig the intensity of any vibration in three mutually perpendicular directions. Dust, dirt, and fly ash shall not exceed .3 grains per cubic foot of flue gas at stack temperature of 500 degrees Farenheit, of which amount not to exceed .2 of a grain per cubic foot shall be of such size as to be retained on a 325 mesh U. S. standard sieve. The conditions are to be conformed to when the percentage of excess air in the stack does not exceed 50 percent at full load. ,Ail primary uses shall be conducted within'a building. No activity shall consist of the excavation of a clay, sand, gravel, rock or other mineral except in the construction of a building or permit. No operations shall be permitted which constitute a danger to the community. No retail sales areas shall exceed 10% of the floor area used for manufacturing purposes. No goods shall be displayed in an open area. No primary or accessory use shall be conducted in an open area. No electromagnetic radiation or injurious radioactive emission shall be produced. No material designed for use as an explosive shall be reproduced or stored on the premises. No noise except for unusual.. irregular noises from operations shall exceed the level of_.ordinary conversation at the lot lines. Maximum sound pressure level in decibels 0.0002 dynes per square centimeter Octaves band in 7 a.m. 10 P.M. cycles to to second 10 p.m. 7 a.m. 0-75.• 74 69 75-150 59 54 150-300 52 47 300-boo 46 41 600-1,200 42 37 1,200-2,400 39 34 2,400-4,800 36 31 above 4,800 33 28 For any noise of an impulsive or periodic character, the permissible limits for each octave bank shall be reduced by five (5) decibels. Sound levels shall be measured at the lot lines with a sound level meter and associated octave band filter manufacturer according to standards prescribed by-the American Standards Association. 401.4 Corner Lot Restrictions On a corner lot, the side yard abutting the street shall have a width equal to the depth of the front yard required in the district and shall be subject to all front yard requirements of this Ordinance. 401.5 Driveway Regulations No driveway shall be constructed or maintained which does not meet the following regulations: Entrance to the street shall be at an angle of 75 degrees to 105 degrees with the intersecting street. The roadway between the right-of-way of the street and cartway shall be paved.. . . All curb cuts shall be properly constructed to the satisfaction of the municipal engineer. Driveways shall have an all-weather paved surface. in commercial and industrial district driveways, at the right-cf -way line shall have a minimum width of 16 feet and a maximum width of 30 feet, excluding any parking bay or turn-around, and the maximum curb cut shall be 35 feet. Driveways may be placed on the property line and shall_ be constructed with adequate drainage. No driveways shall be constructed so that there is an access within 100 feet of another-entrance or exit of the same property. No driveway shall be constructed without adequate provisions for drainage. No driveway shall be less than 10 feet in width. 401.6 Outdoor Storage Outdoor storage of any type shall not be permitted unless such storage is a part of the normal operations conducted on the premises, subject to the requirements of the prevailing zoning district. 401.7 Fences Fences may be erected to a maximum height of eight (8) feet. Fences at corner lots will be subject to the requirements of Section 104 I , visibility at intersections, as applicable at cartways and driveway intersec- tions. 401.8 Design'Standards Screening A planted visual barrier or fence screening shall be provided along any lot line adjacent to a residential district except where lots are separated by a public right-of-way. A screening shall be a material of sufficient height and density to reasonably conceal the structures and.u'ses from view of the adjacent residential district. Storage All storage shall be completely screened from view from any public right-of-way and any residential use. All organic rubbish or storage shall be contained in air-tight, verminproof containers. Landscaping Any part or portion of a site which is not used for building area or paved area shall be planted with an all season ground cover or mulch and shall be landscaped according to an overall plan and in keeping with the natural surroundings. Any single parking area with 50 or more spaces shall utilize at least 5 percent of its area in landscaping which shall be in addition to open air requirements of the Zoning District. Access and Traffic Control No driveway or private street servicing a commercial or industrial use shall be located within 10 feet from the intersection of any right-of-way lines. When any driveway or street shall provide access for more than 100 parking spaces, the approval of the design shall be subject to review by the members of a municipal governing body charged with the administration of'*streets and public safety. No design_,shall be approved which is likely to create ` substantial traffic hazards endangering the public safety. Safety -require ments which may be imposed In such a review shall include traffic control devices, acceleration lanes, turning lanes,. traffic and lane markings, and signs. Lighting All parking areas, driveways and/or streets shall be provided with a lighting system which shall furnish a minimum of 35 footcandles at any point. 401.9 Loading Regulations Determination of Need As required by Plan Approval of this ordinance, the applicant shall suppl%/. information relating to the estimated truck traffic serving the facility to include projections based upon potential expansion. 401.10 Accessory Use Regulations Garages Shall be designed to conform with the main building and shall be set back to the requirements of the applicable zoning district. Other Accessory Use Controls The area and bulk regulations of the prevailing Zoning District shall apply except where the regulations of this section are more strict. Facilities designed to provide services to the entire community shall be permitted as accessory uses even though there is no direct relationship to the primary use. No activities shall be permitted which create a public nuisance and/or interfere with the use of the adjacent lots. Nothing in this section shall limit other temporary uses so long as they are accessory to the primary use of the land and do not create a danger to public health or safety and/or welfare of the community. 401.11 Off-Street Parking Regulations Standards For commercial, industrial, public and semi-public uses, parking space for one vehicle shall be equal to at least 350 square feet for the purpose of computing car spaces including stall and driveways, and shall have a stall of at least ten by twenty feet in size. ARTICLE 500 SIGNS • SECTION 501 SIGN PERMITS 501.1 -Scope No exterior sign, or, interior sign which is visible from the exterior, other than signs less than four square feet and not illuminated, and signs advertising sale or lease of real estate which are less than twelve square feet and not illuminated shall hereafter be erected, rebuilt, altered, relocated or enlarged until a permit is issued by the Zoning Officer for each purpose. 501.2 Application Procedures Application shall be made in writing to the Zoning Officer on a form specified for such purposes and shall contain the following: A detailed scale drawing of the-sign showing its intended location and stating how it shall be affixed; A statement indicating the type of construction and the manner of installation together with the materials to. be used; A written statement that the applicant is the owner of the premises on which the sign will be erected or that the applicant has obtained the :consent of the owner or lessee of such premises to erect such sign; A written agreement that the sign shall be erected according to the accompanying plans and specifications. 501.3 Free Standing Signs If the sign is to be supported by a separate structure to be erected for that purpose, then the applicant shall supply a map of the lot indicating the location of the proposed sign and the relative distances to a point perpen- dicular to the lot lines. A scaled diagram or photograph of a similar sign shall also be attached. 501.4 Review Procedure Permits shall be granted or denied within thirty (30) days from the date of application. All approved permits, together with the accompanying informa- tion shall be a public record. 501.5 Denial No Sign Permit shall be granted unless the application conforms to the require- ments of this ordinance. If the denial is based upon an interpretation of this ordinance, the applicant shall be informed of his right of appeal to the Zoning Hearing Board as provided by Appeals of this ordinance. -50- Off-Street Parking Space Requirements Uses 1. Automobile Laundry 2. Automobile Sales and Service Garages 3. Banks or Professional Offices' 4. Bowling Alleys 5. Churches and Schools 6- 7. 8. 9- 10. . 11. 12. t 13• 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. Community Buildings and Social Halls Dance Halls, Swimming Pools, Roller Rinks, Clubs, Lodges, and Other similar places and commercial buildings Driving Ranges and Miniature Golf Food Supermarkets Funeral Homes, Mortuaries Furniture or Appliance Stores Hospitals, Nursing, and Convalescing Homes Hotels, Motels, Tourist Houses, Boarding and Lodging Houses Manufacturing Plants, Research or Testing Laboratories, Bottling Plants Medical and Dental Offices Multiple Dwellings Restaurants, Beer Parlors, and Night Clubs Retail Stores and Shops Rooming Houses Service Stations Single family dwelling Sports Arenas, Auditoriums, Theaters, Assembly Halls Trailer or Monument Sales, or Auctions Wholesale Establishments or Warehouses 401.12 Flood Plain Regulations Required Parkinq Spaces 5 for each laundry machine 1 for each 400 sq ft of floor area 1 for each 200 sq ft of floor area 5 for each alley 1 for each 3.5 seats in an auditorium, or i for each 17 classroom seats, whichever is greater 1 for each 100 sq ft of floor area 1 for each 100 sq ft of floor area or of water area in swimming pool 1 for each tee 1 for each 200 sq ft of floor area 5 for each parlor 1 for each 200 sq ft of floor area 1 for each 3 beds, plus I for each employee 1 space for each guest room 1 for each 1,000 sq ft of floor area plus 1 for each 2 employees in the maximum working shift. The total parking area shall not be less than 25% of the building floor area 5 spaces for each doctor or dentist 2 spaces per dwelling unit 1 for each 2.5 seats 1 for each 120 sq ft of floor area 1 for each bedroom 2 for each service bay 1 for each dwelling unit 1 for each 3.5 seats for each 2,500 sq ft of lot area I for each 2 employees on maximum shift. The total parking area shall 'be not less than 25% of the building floor area if the denial is based upon a violation of this ordinance, then the appli- cant shall be informed of his right to a revision of the ordinance by an Amendment of this ordinance or a Variance of this ordinance. 501.6 Duration of Permit All Sign Permits granted shall remain valid for a period of six (6) months. If the applicant has not undertaken a significant portion of the work re- quired, a subsequent Permit shall be necessary.. SECTION 502 SIGN REGULATIONS 502.1 Classification For purpose of this ordinance, all signs shall be classified by the follow- ing description: Nameplate, a sign indicating the name and/or address of an occupant. Instructional, a sign conveying instructions with respect to the use of the premises or a portion of the premises on which it is maintained or a use or practice being conducted on the premises. Identification, a sign for a permitted use conducted on the premises or for articles sold or distributed by that use or displaying the name of the premises. Temporary, (a) A sign intended for a limited period of display but not more than a six months.' continuous period. (b) Temporary signs for specific events shall be removed within 48 hours from the conclusion of the scheduled event. Business, A sign for a permitted use conducted on the premises which shall identify the written name and/or the type of business and/or any trademark of an article for sale or rent on the premises or otherwise call attention to a use conducted on the premises. Advertising, a sign promoting a product for sale or rent or a service con- ducted off the premises or a directional sign identifying the written name of a business. 502.2 Types For the purpose of this ordinance, all signs may be grouped by the method of their construction as follows: Free-standing Ground, a sign which is independently supported by three or more supports whose cross-section area at a height of two feet above the ground exceed four square feet and which are not attached to any building or structure. The lowest portion of the sign facing shall be ten (10) feet above the ground level with the exception of sign facings of less than 10 square feet. Free Standing Pole, a sign which is independently supported by one or two supports whose total cross-section area at a height of two feet above ground Cade is four square feet or less and is not attached to any building or structure. The lowest portion of the sign facing shall be 10 feet above the ground level with the exception of sign facings of less than 10 square feet. Wall-Surface, a sign erected or displayed on or parallel to the surface of a building and projecting not more than six inches. Wall -Pro'ectin, a sign erected or displayed obliquely or perpendicularly to the surface of a building and projecting no more than s i x (6) feet, but in no case shall the edge of the sign approach within two (2) feet of the curb line. Roof, a sign erected or displayed upon the roof of any building or struc- ture or a wall sign, a portion of which exceeds the height of the building. Other, a sign not permanently attached at all points on which utilizes air motion, sounds, directed fights, or mechnical parts for effect. 502.3 Restrictions by Type The permitted sign classifications shall be restricted as follows: FREE-STANDING GROUND Instructional Identification Business Advertising WALL-SURFACE Nameplate Instructional Identification Business FREE-STANDING POLE Nameplate Instructional Business ROOF Business Advertising WALL-PROJECTING Identification Business OTHER Business 502.4 Restrictions by Size in Residential Zoning Districts, the maximum size of facings shall be: Nameplate - two (2) square feet Instructional - two (2) square feet Temporary - twelve (12) square feet, no dimensions of which shall exceed six (6) feet. In Commercial and Industrial Zoning Districts, the maximum size of sign facings shall be: ` FREE-STANDING GROUND - two hundred (200) square feet for each stationary sign. No dimensional width shall exceed twenty (20) feet. FREE-STANDING POLE- - No sign -facing•shalI be larger than sixty (60) square feet, but no dimensional width shall exceed twenty (20) feet. WALL-SURFACE - No sign shall extend beyond the wall faces of a building nor have a sign facing whose area exceed two hundred (200) square feet of which no dimension shall exceed twenty (20) feet or 50% of the building wall on which it is located, whichever is less. WALL-PROJECTING - No sign facing shall exceed sixty (60) square feet and shall not extend beyond the improvement setback line by more than six ('6) feet, but in no case shall the edge of the sign approach within two (2) feet of the curb line. No dimension shall-exceed twenty (20) feet. ROOF - The maximum building height of the applicable Zon,.ing District or the distance to the nearest side or rear lot line, whichever is less. OTHER - The maximum building height of the applicable Zoning District or the height of the building or structure to which it is attached, or the distance to the nearest side or rear lot line. 502.5 Restrictions by Height In Residential Zoning Districts no sign shall exceed six (6) feet in height. In Commercial and Industrial Zoning Districts, the maximum height of signs shall be: FREE-STANDING GROUND - No free standing ground sign or any part thereof, including braces, supports or lights, shall exceed a height of twenty-five (25) feet. Height shall be measured from a grade level directly below the face of the sign to the highest part of the sign. FREE-STANDING POLE - No free standing pole sign or any part thereof, including braces, supports or lights, shall exceed a height of twenty-five (25) feet. Height shall be measured from a grade level directly below the face of the sign to the highest part of the sign. WALL-SURFACE - The height of the building wall on which it is attached. WALL-PROJECTING - The height of the building wall on which-it is attached except that any portion of a sign which extends beyond the building setback line shall be at least ten feet above the ground level. ROOF - The maximum building height of the applicable Zoning District or the distance to the nearest side or rear lot line, whichever is less. OTHER - The maximum building height of the applicable Zoning District or the height of the building or structure to which it is attached, or the distance to the nearest side or rear lot line. 502.6 Additonal Restrictions No illuminated or moving signs shall be permitted in Residential Zoning Districts. No sign shall have an Illuminated source which would create a traffic danger. No vulgar, indecent, or obscene advertising matter shall be displayed in any manner. No sign shall be erected or located as to prevent free ingress to or egress from any window, door, or fire escape. No sign shall be placed in such a potion that it will obscure light or air from a building or which would create a traffic danger. No signs shall be permitted which are pasted, stapled, or otherwise permanently attached to public utility poles or trees within the right-of-way of any street. No sign shall be permitted which rotates and/or causes interruption or flashing of light. Clear-sight triangles shall be provided at all street and driveway intersec- tions. Isosceles triangles shall be established for a distance of 25 feet of the point of intersection of the cartway lines. 502.7 Interpretations All signs shall be subject to the performance standards of the Commercial or Industrial Zoning District in which they are located. The size of the sign shall refer to the area of the sign facing including any border framing or decorative attachments. In the case of free-standing letters, it shall be the area contained between the highest and lowest points of any letters, and the extremity points of the first and last letters. -54- The number of signs shall not be restricted except as follows: 10 On lots in Residential Zoning Districts, no.more than two (2) sign facings shall be permitted. On lots in Commercial and Industrial Zoning Districts, no.more than five (5) signs may be erected or maintained on any premise at any one time. A double-faced sign shall count as a single sign. In calculating the totaI.number of signs on a premise, both permanent and temporary signs shall be combined in the total. The following signs shall not be considered as subject to permit regulations. Name and address of resident if not more than two (2) square feet in sign area. "No Trespassing" signs or other signs-regulating the use of a property if not more than two (2) square feet in sign area. Signs erected by a.governmental body such as traffic signs, street signs, safety signs, and signs identifying public schools and play- grounds. Memorial plaques,*cornerstones, and historical tablets. Temporary Signs. ARTICLE 600 ADMINISTRATIVE PROCEDURES It is the purpose of these regulations to prescribe the procedures by which the administration of this ordinance shall take place. Notching contained within this section shall be interpreted as limiting the adoption of administrative regulations which.do not supersede stated procedures. SECTION 601 ZONING OFFICER 601.1 Duties For the administration of this ordinance, a Zoning Officer shall be apointed by the Borough Council. The Zoning Officer shall be dharged with enforcement of this ordinance, to include necessary inspections of propety, buildings, structures, and any plans required prior to granting of a Zoning Permit. It shall be his duty to issue all Zoning Permits upon the completion of the application procedure and an inspection to determine the conformance to the requirements of this ordinance. The Zoning Officer shall prepare a monthly report on his activity for the Borough Council and Planning Commission. He shall be charged with receipt of all fees and shall issue all necessary stop orders. The Zoning Officer shall be available to assist the Planning Commission, the Zoning Hearing Board, or the Borough Council when necessary. 601.2 Qualifications A knowledge of all public roads in the borough and the terrain of the Borough. He shall be familiar with building procedures and terminologies. The Zoning Officer must demonstrate proficient oral knowledge and understanding of the requirements of this ordinance prior to appointment. 601.3 Compensation The compensation of the Zoning Officer shall be determined by the Borough Council and reevaluated on a yearly basis. 601.4 Testimony The Zoning Officer shall attend all hearings conducted by the Zoning Hearing Board and offer in evidence such testimony as may be necessary. 601.5 Recording The Zoning Officer shall maintain appropriate files containing the application for all permits under this ordinance except those pertaining to the Zoning Hearing Board. He shall also maintain a current list of uses which do not conform to the requirements of this ordinance, Non-Conforming Use Regulations. SECTION 602 AMENDMENTS 602.1 Power The regulations, restrictions, and boundaries scat forth in this ordinance may, from time to time, be amended by the Borough Council. 602.2 Procedure The following requirements. shall be observed prior to making any amendment to this ordinance. Amendments may be proposed by any property owner, Borough Council, or Borough Planning Commission. In the case of an amendment other than that prepared by the Borough Planning Commission, the Borough Council shall submit each amendment to the Borough Phanning Commission at least thirty (30) days prior to the hearing on such proposed amendment for recommenda- tions. Furthermore, the proposed amendment shall be submitted to the Cumberland County Planning Commission for recommendations. Upon receipt of the Borough and County Planning Commision recommenda- tions, the Borough Council shall hold a public hearing thereon pursuant to public notice. Such notice shall appear in a newspaper of general circula- tion at least ten (10) days prior:to the hearing date. The public notice shall contain the time, date, and place for the public hearing as well as the full text or summary of the proposed orinance as required by law. The Borough Council shall act upon the proposed amendment at the scheduled public hearing or defer action. If they shall defer action, then they shall reconsider the proposed amendment no later than sixty (60) days from the original public hearing at a subsequently advertised meeting to consider that amendment. Any approved amendments shall be noted on the Zoning Map and, if required, in.the official copy of the Zoning Ordinance. Changes to the text of this ordinance shall be made available to the general public within a reasonable time. 602.3 Restrictions Neither the Planning Commission nor the Borough Council shall be empowered by this ordinance to establish conditions precedent to the adoption of an amendment; however, the applicant may willingly prescribe conditions as a part of his application for amendment and the Planning Commission may suggest and the Borough Council require that they be recorded. Such action shall not be considered as a condition precedent to the adoption of a zoning amendment. 602.4 Review Standards T)e Planning Commission shall utilize the following standards in reviewing any proposed amendment: That it is feasible within the Development Limitations of the Municipality and expressed by the Comprehensive Plan; That it is within the general proposals of the Proposed Land Use • Plan of the Comprehensive Plan; That the impact on traffic can be accommodated by the Proposed Circula- tion Plan of the Comprehensive Plan; That the public demands can be provided for by the Proposed.:%,"ommunity Facilities and Services Plan of the Comprehensive Plan. If the proposed amendment is at variance with these standards, then it may be rejected or revised- No amendment shall be approved which is at variance to these standards unless the standards shall be revised and such revision made a part of the Comprehensive Plan. SECTION 603 STOP ORDER 603.1 Scope A StOp Order shall be issued in the following instances: If activities regulated by this ordinance are undertaken without an effective Zoning Permit or Sign Permit being granted; If an activity undertaken under an effective Zoning Permit or Sign Permit deviates from the application either during or after comple- tion of the work; If a use is conducted in a way which is in violation of the use requirements, area-and bulk regulations, or performance standards; If a use requiring a Special Permit or subject to any Supplemental Control is not conducted in accordance with those regulations. 603.2 Notice to Owner A Stop Order shall be issued by the Zoning Officer and delivered to the owner of any property or his agent. Delivery shall be construed to include certified, 'return receipt mail or posting on property. 603.3 Contents The Stop Order shall be in writing and state the nature of the violation and under which conditions work or use may continue. A time not to exceed five (5) days may be permitted to allow for necessary corrections. 603.4 Unlawful Continuance Any person who shall continue in violation of any Stop Order shall be in violation of this ordinance, subject to Violations, of this ordinance. SECTION 604 THE PLANNING COMMISSION 604.1 A.Rpo i ntmen t The Planning Commission consisting of five to seven members who shall be residents and landowners of the Borough shall be appointed by the Borough Council in the manner prescribed by law. 604.2 Powers The Planning Commission shall function as both a Zoning Commission and a Planning Commission. The Planning Commission shall also have those powers prescribed by this ordinance which shall define their-duties in relation to the en- forcement of Zoning Restrictions so long as such powers are in conformance with those prescribed by law. These powers shall include: Review of all Plan Approvals as prescribed by Plan Approval of this ordinance. Review and recommendations of all amendments to this ordinance as prescribe by Amendments of this ordinance. Review and recommendations of all variances as prescribed by Variances of this ordinance. Review and recommendations under all applicable Sections of this ordinance. Preparation-of a yearly review of activity under this ordinance with suggestions for improvements and refinements in the wordage and enforcement procedures of the ordinance. 604.3 Rules The Planning Commission shall adopt rules in accordance with the provisions of this ordinance. Such rules shall include those necessary for the purpose of administeri.ng this ordinance. 604.4 Meetings The Planning Commission shall meet monthly on a regularly prescribed date and at a regularly prescribed meeting place and at other times as the Chairman may deem necessary. All meetings of the Planning Commission shall be open to the public. The Secretary of the Planning Commission shall keep minutes of all meetings, a copy of which is to be submitted to Borough Council. 604.5 Not i f i ca t i on The Planning Commission shall notify all persons requesting such notifica- tion of a meeting during which a proposal affecting their interests will be considered. Requests for notification shall be made.to the Zoning Officer or Secretary of the Planning Commission. An opportunity to introduce evidence and other testimony shall be guaranteed to any interested party. I& 604.6 Decisions Within 30 days after any hearing, or unless a different time is required by this ordinance, the Planning Commission shall record its review and recommendations in a written form. A copy of this shall be provided to the applicant, Zoning Officer, and the Borough Secretary. 604.7 limitations The Planning Commission shall function as an advisory body and shall be restricted in its duties to applying the conditions, requirements, restric- tions, and standards imposed by the various sections of this ordinance in keeping with its overall intent. 604.8 Appeals Any applicant or affected person may, within ten (10) days of a decision of the Planning Commission, appeal to the Borough Council for review. Such review shall be conducted during a regularly scheduled meeting. The Borough Council may affirm, reverse, or modify the findings of the Planning Commis- sion.. 604.9 Activities The Planning Commission may undertake special studies relating to the Comprehensive Plan and its implementation which it deems necessary. Public meetings may. be undertaken for this purpose. Material may be gathered and printed. The Planning Commission may retain outside consulting assistance as it deems necessary. All expenditures of Borough funds by the Planning Commission shall be approved by the Borough Council in the form of an appropriation prior toa commitment by the Planning Commission. ARTICLE 700 THE ZONING HEARING BOARD It is the purpose.of these regulations to prescribe the procedures by which appeals can be undertaken under this ordinance to provide the necessary administrative remedies which must be followed before any court action may be filed. Nothing contained within this section shall be interpreted as limiting the adoption of administrative regulations by the Zoning Hearing Board to implement their activities. SECTION 701 DUTIES AND POWERS 701.1 Appointment A Zoning Hearing Board (hereinafter referred to as "the Board") consisting of three (3) members, who shall be residents and landowners of the Borough, shall be appointed by the Borough Council in the manner prescribed by law. 701.2 functions and Powers A. Appeals from Zoning Officer - The Board shall hear and-decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of a valid ordinance or map or any valid rule or regulation governing the action of the Zoning Officer. B. Challenge- to the validity of any ordinance or map - The Board shall hear challenges to the validity of a Zoning Ordinance or map. in all such challenges, the Board shall take evidence and make a record thereon. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court. C. Variances - The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance inflicts unneces- sary hardship upon the applicant. D. Special Exceptions - Where the governing body in the Zoning Ordinance has stated special exceptions to be granted or denied by the Board pursuant to express standards or criteria, the Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to imple- ment the purpose of this act and the Zoning Ordinance. In exercising the above mentioned powers, the Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination including any other order requiring an alleged violator to stop, cease, or desist, or discontinue anal may make such order, require- ment, decision, or determination including a stop order or order to cease and desist. 701.3 Rules The Board shall adopt Rules of Procedure in accordance with the several provisions of this ordinance as to the manner of filing appeals or appli- cations for special exceptions for variance from the terms .of this ordinance. All appeals and applications made to the Board shall. be in writing, on forms prescribed by the Board. Every appeal or applicatiop shall refer to the special provision of the ordinance involved; and shall exactly set forth the interpretation that is claimed, the use for which the special exception is sought, the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be. 701. 4. Meet i nqs Meetings of the Board shall be held at the call of the chairman, and at such other times as the Board may determine. Such chairman, or, in his absence, the acting chairman, may administer oaths and request the attendance of witnesses. All meetings. of. the- Board shall be open to the public. The Secretary of the Board, shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed with the Borough Secretary and shall be a public record. The Board may, with the approval of the Borough Council, employ a solicitor. The Board shall have a transcript taken of any public meeting. 701'. 5 Not i ce Upon the f i 1 i.ng of a request for a heari ng under any sect ion of th i s Art i cl e, the Board shall fix a reasonable time and place for a public hearing thereon and shall file notice as follows: The Planning Commission and the Borough Council, and the Solicitors for those bodies, shall be formally notified in writing; Notice shall be posted upon the dwelling, if one exists, otherwise at a conspicuous place upon the property; Notice shall be published once in a newspaper of general circulation published or circulated in the Borough. Provided, however, that the publication shall be at least ten (10) days prior to the date fixed for the public hearing; Notice shall be mailed to all property owners within two hundred (200) feet. A minimum of ten (10) days' notice shall be provided to all parties. Any continued hearing shall require the same notice requirements. 701.6 Decision Within forty-five days after a hearing, the Board shall record the decision unless a decision is made to continue the hearings. In any event, the final decision shall be made within forty-five (45) days after the last hearing. Su ch decision shall indicate the finding of the Board and the vote of each Board member. A statement shall summarize the Board's opinion of the required evidence and their specific reasons why the decision is in keeping with any additional standards required. A copy of -this decision shall be provided the applicant, the Borough Secretary, the Chairman of the Zoning Commission, and the Planning Commission, and the Zoning Officer. 701.7 Special Conditions The Board shall have the power to impose special conditions upon their decisions only in those instances where such conditions are necessary to meet,the standards imposed under this ordinance. Unless otherwise specified by the Zoning Hearing Board, a special exception or variance shall expire if the applicant f ails to obtain a zoning permit thereunder within six (6) months from the date of authorization thereof. 701.8 Fee-s Application before the Board shall be accompanied be a cash payment to the Borough in accordance with a Fee Schedule adopted by resolution of the Board and approved by the Borough Council, following the enactment of this ordinance, or as such schedule may be amended by resolution of the Zoning Hearing Board and approved by the Borough Council. 701.9 Provisions and Rules Unless all provisions and rules of this ordinance are complied with and all filing fees are paid, the Zoning Hearing Board shall not be required to act upon any application. SECTION 702 APPEALS 702.1 Appeals from the Zoning Officer or Borough Council Appeals to the Board may be taken by any person or Borough officials aggrieved or affected by a provision of this ordinance or by any decision of the Zoning Officer or Borough Council. Such appeal shall be taken within a reasonable time as provided by rules of the Board, by filing with the Secretary of the Board a notice of appeal specifying the grounds thereof. All the papers constituting the record upon which the appealed action was taken shall be forthwith transmitted to the Board. 702.2 Appeal shall act as a sta An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Officer certified to the Board, after notice of the appeal shall have been filed, that by reason of acts stated in the certificate a stay would, in their opinion, cause immediate peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be presented by the Board or by the Court, on notice to the Zoning Officer and due cause shown- SECTION 703 SPECIAL EXCEPTIONS 703.1 Application Procedures Applications for those uses permitted as Special Exceptions in a particular Zoning District shall be made in writing to the Board and shalt contain the following: Material required for a Zoning Permit Statements providing evidence that: Congestion on public streets will not be materially increased. The danger from fire or other hazards to the public safety will not be increased. The population density of the area shall not be materially affected. Public services of water, sewer, school, police, etc., will not be materially increased. The following standards must be met before a Special Exception may be granted: 703.2 Lot Size Requirements No Special Exception shall be granted for any proposed use unless the lot size provided for the use is equal to the following areas: Church - three (3) acres Institution - two (2) acres School - five (5) acne Other area and bulk regulations for all Special Exceptions shall meet the requirements of the applicable Zoning District or Special Conditions imposed. 703.3 Standards for Approval No Special Exception shall be granted unless the-Board shall find that the following conditions prevail: The proposed use does not impair the development of the Comprehensive Plan. The surrounding streets are sufficient to handle any expected increase in traffic generated by the proposed use. The proposed use will not adversely affect the public health, safety or general welfare. The proposed use conforms to Off-Street Parking Regulations of this ordinance. 703.4 Restrictions on Approvals The restrictions imposed by the Board shall be entered upon the Zoning Permit or Sign Permit and made a permanent part of the application. SECTION 704 VARIANCES 704.1 Application Procedures Application for variances from the requirements of this Ordinance shal,l be made in writing to the Board on a form specifically for such purpose and shall contain the following: a completed application for a Zoning Permit, a statement in letter form providing evidence that: 1. Congestion on public streets will not materially increase. 2. The danger from fire or other hazards to the public safety will not be increased. 3. The population density of the area will not-be materially affected. 4. Public services of water, sewer, school, police, etc., will not be materially increased. 5. That there are unique physical circumstances or conditions including irregularity, narrowness or shallowness of lot size of shape or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the Zoning Ordinance in the neighborhood or-district in which the property is located. 6. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. 7. That such unnecessary hardship has not been created by the appellant. 8. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the appropri- ate use or development of adjacent property nor be detrimental to public welfare. 9. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible to the regulation in issue. 704.2 Standards for Granting a Hardship Variance No variance shall be granted by the Zoning Hearing Board unless the Board v shall find, in addition to the requirements, Application Procedures (above) conditions prevail: The proposed variance does not impair the development of the Comprehensive Plan. The surrounding streets are sufficient to handle any expected increase in traffic generated by the proposed variance. The proposed variance will not adversely affect the public health, safety or general welfare. In granting any variance, the Board may attach such reasonable condi- tions and safeguards as it may deem necessary to implement the purpose of this Zoning Ordinance. 704.3 Use.Variance In any variance which will provide for a use not specifically permitted by the Zoning Ordinance, then the Board must request the Planning Commission to file its recommendations. The application shall be given to the Chairman of the Planning Commission. They shall have a 30 day period to formulate their recommendations. If no recommendations are provided, then it shall be presumed that the Planning Commission endorses the application for a variance. ARTICLE 800 ENFORCEMENT AND ENACTMENT PROVISIONS It is the purpose of these regulations to prescribe the procedures by which the proper enforcement may be provided by the appropriate municipal officers, boards or commissions. A furtho- purpose is to state the enactment provisions necessary for the legal adoption of. this ordinance. SECTION 801 VIOLATIONS 801.1 Scope It shall be a violation of this ordinance to fail to secure any type of Administrative, Planning or Special Permits required by this ordinance. It shall be a violation of this ordinance to fail to make proper payment when required or to undertake other deliberate actions which are contrary to this ordinance. It shall be a violation of this ordinance to continue to work on or use a building, land, structure, or other facility after being subjected to a Stop Order of this ordinance. It shall be a violation of this ordinance to undertake actions which are defined by the prevailing section of this ordinance as a violation subject to-these provisions. It shall be a violation of this ordinance to defy any restrictions imposed by a conditional approval of any Permit or any other directive of the Zoning Hearing Board, Planning Commission, Zoning Officer, or other governmental body. 801.2 Not i ce Notice shall consist of a written statement notifying the violator, which identif ies the applicable section.of the Zoning Ordinance averred to be violated or a Stop Order of this ordinance. 801.3 Discontinuance Immediate corrective measures shall be undertaken by the violator or an appeal filed with the Zoning Hearing Board in accordance with Appeals, of this ordinance. 801.4 Failure to Discontinue Any unlawful continuation of a violation shall subject the violator to Penalties of this ordinance. V SECTION 802 PENALTIES 802.1 Scope For any violation of. this ordinance, a penalty must be invoked unless the violation is corrected or corrective actions undertaken within five (5) days of notification of the violation. 802.2 Applicabilit The penalty provisions may be imposed upon the owner, general agent, tenant, architect, contractor, builder, or any person having an identifiable property interest, including a mechanic's lien, mortgage, or other attach- mentagainst the property. 802.3 Extent of Penalties Any person subject to these penalties may upon conviction thereof be subject to a._fine or penalty not exceeding two hundred and fifty dollars ($250.00) for each and every offense. In default of payment, the offender may be committed to prison for a period not exceeding 30 days for each offense. 802.4 Offense An offense shall constitute a single violation subject to penalty. Each day of the continuance of this violation shall constitute a separate violation. 802.5 Beneficiary of Fines The municipality shall be the beneficiary of a-ll fines paid under this section to include the costs of prosecuting any legal action if allowable under the laws of this state. 802.6 Court Action Nothing in this section shall be interpreted as restricting the right of the municipality from any judicial proceeding to obtain injunctive relief or any other legal remedy. SECTION 803 APPEAL TO COURT 803.1 Time of Appeal All zoning appeals shall be filed with the court within the time limit provided by law. 803.2 Notification The appellant shall formally notify in writing the Borough Council of his intentions prior to filing any appeal. SECTION 804 ENACTMENT PROVISIONS r 804.1 Scope _ This section includes the necessary provisions for the adoption of this ordinance as well as necessary clauses affecting the legal interpretation of this ordinance. 804.2 Repealer All ordinances or parts of ordinances inconsistent herewith are hereby repealed. 804.3 Interpretation If the terms of this ordinance shall be in conflict with those of another municipal ordinance, then the restriction which imposes the greater limitation shall be enforced. 804.4 Severability_ If any sections of this ordinance shall be held as illegal or unconstitu- tional by a recognized court of the Commonwealth, such a determination shall not affect the legality of the remaining portion. 804.5 Effective Date This ordinance shall become effective ten (10) days after final approval. v AN ORDINANCE NO. 468 AN ORDINANCE MMINQ THE NEW C MERLAND BOROUGH ZONING ORDINANCE N0. 359 AND ESTABLISHING RESIDENTIAL CC RCIAL AND INDUSTRIAL anw, WITHIN THE BOROUGH AND RULES CREATING AND REGUIATICINS ON THEREWITH. THE PURPOSE OF THIS ORDINANCE IS TO PROVIDE AND PROTECT THE PUBLIC HEALTH, SAFETY AND WELFARE OF THE RESIDENTS OF THE BOROUGH OF NEW C MBERLAND . BE IT ENACTED AND ORDAINED by the Council of the Borough of New Cumberland, Cunberland County, Pennsylvania, and it is hereby enacted and ordained by the authority of the same: SECTION 1 - This Ordinance shall amend and supersede the New Cumberland Borough Zoning Ordinance No. 359 enacted December 3, 1969 ( and, necessarily Ordinance No. 99 enacted July 7, 1948) and shall partially re-enact, revise, add provisions thereto, and delete provisions therefrom. Any provision in Ordinance No. 359 which is not contained herein shall be considered as repealed. ENACTED AND ORDAINED this 5th day of October , 1981. COUNCIL OF THE BOROUGH OF NEW CUMBERLAND APPROVED this • 5th day of October, 1981. r _: cv 7 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ----------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) TONY PATACODNI VS. THE BOROUGH OF NEW CUMBERLAND ZONING HEARING BOARD No 2008-6173 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): E,1 a ' a- ' f f N } ' of Appeal Vrrn T,a nd 11aa T)Pn i c i nn 2. Identify all counsel who will argue cases: (a) for plaintiffs: Barbara Sumple-Sullivan, Esquire, 549 Bridge Street,New Cumberland,PA 17070 (Name and Address) (b) for defendants: Richard W. Stewart, Esquire, 301 Market Street, PO Box 109, Lemoyne, PA 17043 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. Notice is being sent simultaneously with the fklVig of this Praecipe. 4. Argument Court Date: f" February 4 2009 Signature Barbara Sumple-Sullivan, Esquire Print your name Date: Plaintiff. Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be flied with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. L Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 TONY PATACCONI, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. . 08-6173 THE BOROUGH OF NEW CUMBERLAND : ZONING HEARING BOARD, CIVIL ACTION -LAW Defendant CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of a Praecipe for Argument Court, in the above-captioned matter upon the following individual via Regular First Class Mail: The Borough of New Cumberland Zoning Hearing Board 1120 Market Street P.O. Box 220 New Cumberland, PA 17070 DATE: December 30, 2008 Richard W. Stewart, Esquire Solicitor for Zoning Hearing Board Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 1'7 3 r Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Appellant t?: _ - r:;.s t? ° .? i t"S :..?: 'r l ?.,`'a TONY PATACCONI, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA V. LAND USE APPEAL THE BOROUGH OF : NEW CUMBERLAND ZONING HEARING BOARD, Appellee NO. 08-6173 CIVIL IN RE: APPEAL OF DECISION OF NEW CUMBERLAND ZONING HEARING BOARD BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this 9ch day of March, 2009, upon review of the Land Use Appeal of Tony Patacconi from a decision of the New Cumberland Zoning Hearing Board, and after consideration of the briefs filed by the parties and oral argument; IT IS HEREBY ORDERED AND DIRECTED that the appeal of Appellants Tony Pataccom is DISMISSED and that the decision of the New Cumberland Zoning Hearing Board is AFFIRMED. By the Court, M. L. Ebert, Jr. J. ? Barbara Sumple-Sullivan, Esquire Attorney for Appellant 549 Bridge Street New Cumberland, PA 17070-1931 6'2 *5 V 118V 60OZ AbViU- d 311-L JO VJohnson, Duffle, Stewart & Weidner Attorneys for Appellee 301 Market Street Lemoyne, PA 17043-0109 C es YYL, Lc LCL -?/If /09 ---m TONY PATACCONI, Appellant V. THE BOROUGH OF NEW CUMBERLAND ZONING HEARING BOARD, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : LAND USE APPEAL : NO. 08-6173 CIVIL IN RE: APPEAL OF DECISION OF NEW CUMBERLAND ZONING HEARING BOARD BEFORE BAYLEY, J. AND EBERT, J. OPINION and ORDER OF COURT Ebert, J., March 9, 2009 - PROCEDURAL HISTORY On July 22, 2008, Tony Patacconi ("Appellant") filed a request for variance from the New Cumberland Zoning Ordinance, Section 202.2, front setback provision prohibiting construction of a building within 25 feet of any property line after a building permit for the same project was denied. After a hearing on September 16, 2008, the Borough of New Cumberland Zoning Hearing Board ("NCZHB") denied Appellant's request for variance and issued its written decision. Appellant filed his appeal on October 16, 2008. STATEMENT OF FACTS Tony Patacconi (Appellant) resides at 109 Rosemont Avenue, New Cumberland, Pennsylvania. Appellant applied for a variance to allow him to construct a covered porch 17 feet, 9 inches from the right-of-way line (approximately a 29% variation) after a building permit for the project was denied. Appellant received permission from the NCZHB for the porch floor itself but did not receive approval to construct a roof over the porch floor. 3 DISCUSSION I. Scope of 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.Commw.Ct. 1996); Sweeney v. Zoning Hearing Board of Lower Merion Township., 626 A.2d 1147, 1150 (Pa.Commw.Ct. 1993); Valley View Civic Assoc. v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa.Commw.Ct. 1983). II. Legal Anal sisof the NCZB Decision A. Criteria for Granting Variance In general, variances are granted only 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). Under 53 P.S. § 10910.2, an applicant must show the following in order to qualify for a variance from the zoning board: (1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located. (2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the 4 provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. (3) That such unnecessary hardship has not been created by the appellant. (4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare. (5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue. 53 P.S. § 10910.2, Borough of New Cumberland Zoning Ordinance § 704.1, para. 5-9. The NCZHB considered all the possible criteria for granting a variance and determined that Appellant did not meet the conditions for a variance.' Appellant admitted that there was no hardship, and did not attempt to argue that he could not make reasonable use of the property without a variance. His desire to improve his property value is simply not enough to warrant the granting of a variance. Without evidence of a hardship or inability to make reasonable use of the property, Appellant is not entitled to a variance. B. Application of the De Minimis Doctrine Appellant argues that his request for variance should be granted based on the de minimis doctrine. Normally, a landowner seeking a variance must demonstrate unnecessary hardship. The de minimis variance doctrine is a narrow exception to the heavy burden of proof involved in seeking a variance. The doctrine applies only where: (1) a minor deviation from the dimensional uses of a zoning ordinance is sought, and (2) rigid compliance with the zoning ordinance is not necessary to protect the public policy concerns inherent in the ordinance. Constantino v. Zoning Notes of Transcript, Zoning Hearing Board of New Cumberland Borough, Sept. 16, 2008, p. 10, (hereinafter "N.T. _"). Hearing Board of the Borough of Forest Hills, 618 A.2d 1193, 1196 (Pa.Commw.Ct. 1992); Township of Middletown v. Zoning Hearing Board of Middletown Township, 682 A.2d 900, 901- 902 (Pa.Commw.Ct.1996). The determination of whether or not the de minimis doctrine applies requires consideration of both factors. Swemley v. Zoning Hearing Board of Windsor Township, 698 A.2d 160,162 (Pa. Commw.Ct.1997). Minor Deviation Sought While there is no precise formula for determining de minimis deviations, the Pennsylvania Commonwealth Court has ruled that even small deviations are not de minimis when there are no other significant factors. In Swemley, the Pennsylvania Commonwealth Court upheld the zoning board's decision that a 34% variation is not de minimis as a matter of law. Swemley, 698 A.2d at 162. In Andreucci v. Zoning Hearing Bd. of Lower Milford Township, 522 A.2d 107, 110 (Pa.Commw.Ct 1987), the court held that an 8% deviation was not de minimis as a matter of law. Similarly, in Leonard v. Zoning Hearing Bd. of the City of Bethlehem, 583 A.2d 11 (Pa.Commw.Ct. 1990), the court held a 6.25% deviation not to be de minimis as a matter of law absent unique circumstances. Swemley, 698 A.2d at 162. In the present case, Appellant requests a variance of approximately a 29% deviation from the ordinance. Given the Commonwealth Court's consistent interpretation of the de minimis doctrine as a narrow exception, we find that Appellant's request in this case is too much of a variance from the ordinance to constitute a minor deviation. 2. Rigid Compliance With Zoning Ordinance The second consideration for a de minimis exception is whether strict compliance with the ordinance is necessary to protect public policy concerns. "[T]he decision of whether to grant a de minimis variance is left to the discretion of the local zoning board." Alpine, Inc. v. Abington 6 Township Zoning Hearing Bd., 654 A.2d 186, 191 (Pa.Commw.Ct.1995). In this case, the NCZHB has adopted a strict interpretation of the criteria for granting variances.2 Understandably, the Board does not want to set a precedent for granting a variance in the absence of the required criteria. The NCZHB respects the Borough's authority by consistently enforcing the ordinance as the Borough intended. The NCZHB has evaluated the public policy concerns associated with granting a variance in this instance, and its decision was properly based on strict adherence to the zoning ordinance. C. Other Homes with Structures in Violation o the 25-foot Setback Ordinance Appellant argues that the decision of the NCZHB denying the variance was arbitrary and capricious because there are other homes in the neighborhood with structures in violation of the 25-foot setback requirement, and that denying him the right to build a similar structure is discriminatory. Chairman Gentzel of the NCZHB stated that the structures currently in violation were not built pursuant to the grant of a variance by the board. One member of the zoning hearing board, who indicated that he had served for 20 years, stated that he was not aware of any variances for roof porches being granted in the Appellant's neighborhood. Apparently there was one home at 103 Rosemont Avenue, New Cumberland, which had constructed a porch within the last 2 or 3 years. However, it was recognized at the hearing that this situation was one which "fell through the cracks,"3 implying that the NCZHB was not called upon to rule in the matter. Furthermore, the Commonwealth Court has consistently held that other ordinance violations in the same neighborhood have no bearing on whether to grant a variance. Swemley, 698 A.2d 160; Leonard, 583 A.2d 11. In Swemley, the Court rejected a landowner's argument that, despite the 34% deviation, she was entitled to a de minimis variance because any z N.T. 14. 3 N.T. 12. 7 interference with the Township's policies has already been accomplished through her neighbor's similar violation. Swemley, 698 A.2d at 163. In Leonard, which involved only a 6.25% deviation, the Court noted that the presence of other lots in the neighborhood with similar deviations did not establish entitlement to a de minimis variance. Leonard, 583 A.2d at 13. Futhermore, the Commonwealth Court has stated that it is appropriate for a zoning board to deny an application for variance based on "the cumulative effect of an additional [violation] ... on conditions in the neighborhood ...." Swemley, 698 A.2d at 163 (citing Alpine, Inc. v. Abington Township Zoning Hearing Bd., 654 A.2d 186, 191 (Pa.Commw.Ct.1995)). The fact that other houses on Appellant's street or in Appellant's neighborhood are in violation of the setback ordinance is not a justification for approving his application. The NCZHB properly denied Appellant's application based on evaluation of the effect that an approval would have on future requests for variances. They did not want to set a precedent for disregarding the variance in cases like Appellant's where there is no basis for approval based on the requirements set forth in the ordinance. This is an appropriate decision made by the NCZHB and we see no basis for Appellant's argument that the decision was arbitrary or discriminatory. D. Zoning Board's Decision Properly Based in Law Appellant also argues that the NCZHB's decision to allow the porch floor pad, which encroaches on the 25-foot setback, while denying the right to cover the porch with columns and a roof, has no reasonable basis in law or fact. However, Appellant's porch floor pad does not meet the definition of a "building" under the ordinance, and is therefore not subject to the 25-foot setback restriction. A "building" is defined under the ordinance as "any enclosed or open structure other than a boundary or fence, occupying more than four square feet of area, having a roof supported by columns or walls and intended for the shelter, housing or enclosure of persons, 8 animals, or chattels, and including covered porches or bay windows and chimneys.4 The NCZHB properly evaluated the meaning of the ordinance and determined that the porch floor pad itself, uncovered, is not prohibited because it is not a building as defined by the ordinance, and the setback restriction in the ordinance only applies to buildings. CONCLUSION Having reviewed the NCZHB testimony and considering briefs from both parties, this Court finds that the New Cumberland Zoning Hearing Board considered all criteria in evaluating Appellant's request for variance and properly found that Appellant did not meet the necessary conditions for a variance. The NCZHB did not abuse its discretion, nor did it make a decision that was arbitrary and capricious when it denied Appellant's request for variance. The Appellant's appeal of the NCZHB decision will be dismissed. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 9th day of March, 2009, upon review of the Land Use Appeal of Tony Patacconi from a decision of the New Cumberland Zoning Hearing Board, and after consideration of the briefs filed by the parties and oral argument; IT IS HEREBY ORDERED AND DIRECTED that the appeal of Appellant Tony Patacconi is DISMISSED and that the decision of the New Cumberland Zoning Hearing Board is AFFIRMED. By the Court, 1*\-? M. L. Ebert, Jr. J. 4 4 New Cumberland Zoning Ordinance, Section 103.6, emphasis added. 9 Barbara Sumple-Sullivan, Esquire Attorney for Appellant 549 Bridge Street New Cumberland, PA 17070-1931 Johnson, Duffle, Stewart & Weidner Attorneys for Appellee 301 Market Street Lemoyne, PA 17043-0109 10 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Jamie Spangler V. Shaun Spangler NO. 09-6173 DIVORCE DECREE AND NOW, f -2 za ?O it is ordered and decreed that Jamie Spangler plaintiff, and Shaun Spangler bonds of matrimony. defendant, are divorced from the Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered. Those claims are as follows: (If no claims remain indicate "None.") None. The Marriage Settlement Agreement entered into by and between the parties is incorporated but not merged into the Divorce Decree. By the Court, 4-13-lo Cwr . C.a?t N \,r le_. Z4. 13.10 tea'tct- Mc4-?le3 'ro ILI Q-?Ok- k C4,LO