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Home My WebLink About04-2499EUGENE E. FAILOR, SR., JOHN E. FAILOR, SR., SARAH MYERS LAWRENCE M. FAILOR, and CHARLENE SHAFFER, Appellants V. ZONiNG HEARING BOARD OF NORTH MIDDLETON TOWNSHIP, Appellee 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CIVIL TERM NO. tg l-,,lqc]q LAND USEAPPEAL NOTICE OF APPEAL AND NOW, comes the Appellants, Eugene E. Failor, Sr., John E. Failor, Sr,, Sarah Myers, Lawrence M. Failor, and Charlene Shaffer, by and through their attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and appeal as follows: 1. Appellants, Eugene E. Failor, Sr., John E. Failor, Sr., Sarah Myers, Lawrence M. Failor, and Charlene Shaffer, are adult individuals of Cumberland County, Pennsylvania. 2. Appellee is the Zoning Hearing Board of North Middleton Township. 3. Appellants filed a Dimensional Use Application (the "Application") with Appellee on February 5, 2004, to subdivide their property, consisting of 5.475 acres, located in the Agricultural Zone at 63 North Middleton Road, Carlisle, Permsylvania (the "Property"), into four separate parcels. 4. Appellants acquired the property by way ora Deed dated July 23, 1986, and recorded at Deed Book C, Vol. 32, Page 915, in the Office of the Cumberland County Recorder of Deeds, Pem~sylvania (the "Deed"), as directed by the will of their father, Parker E. Failor. 5. Each of the four residences is served by a common gravel drive. 6. Each of the four residences is self-sufficient with its own home. The parties have maintained the residences from 1949, 1967, 1968, and 1969, respectively. 7. In addition to the four individual residences, a septic system serves each of the residences. The septic systems were installed at various times. The first one was installed in 1967 and the last one was installed in the late 1980s or early 90s. 8. Each of the four residences has either a garage and/or shed; one residence has a swimming pool located on it. 9. The Appellants requested a dimensional variance to subdivided the Property into four parcels. The relevant zoning ordinance permits one lot for each two acres of land, or a maximum of two lots. 10. 11. A hearing was held before Appellee on March 2, 2004, and April 6, 2004. On May 4, 2004, Appellee voted to deny the Application. Appellee supplied Appellants with a signed letter explaining its reasons for rejecting the Application. 12. This appeal is filed from Appellee's adverse decision above. 13. The provisions of the zoning ordinance inflict unnecessary hardship upon Appellants as stated below. 14. Appellee's denial of the Application constituted an error of law and an abuse of discretion, in that: a. There are unique circumstances and conditions present on the Property. There are four residential dwellings (one permanent dwelling and three mobile homes) situated on the Property that pre-date the enactment of the current Zoning Ordinance, Article II, Section 204- 14~E(1). Further, the residents each maintain their own septic system and outbuildings. b. The cimumstances are unique in that each party has maintained their residences since 1949, 1967, 1968, and 1969, respectively, designating boundary lines of their own. This presents an unnecessary financial hardship unique to the Property (not the person) in that Appellants are unable to sell their individual lots without subdividing, the subdivision cannot be configured to provide for public road frontage for each lot, and in order to maintain the minimum lot area requirement, the minimum lot width for Lot No. 2 is less than the minimmn required, as measured from the building setback lines. c. The anthorization of the variance is necessary because the condition of the Property creates an impossibility for the parties to conform to the relevant zoning ordinance and sell their individual lots on the Property. d. The condition which lead to the unnecessary hardship of conforming to the zo~fing ordinance and subdividing the Property thereunder was not created by the Appellants. The condition was created by the enactment of the zoning ordinance because the Property was maintained as four individual lots prior to North Middleton Township enacting the zoning ordinance and has remained the same ever since. e. The variances will in no way prohibit the use of adjacent properties. In fact, it will only create in the eyes of the law - boundaries - that which has already been created by the parties over 30 years ago. The welfare of the public, the use of development of adjacent property owners, and the character of the neighborhood will remain unchanged and unharmed by granting the variance because the Property, for all intensive purposes, will remain the same. f. The variances requested represent the minimum variances that will afford relief and represent the least modification possible because the Property is already maintained as four separate, individual, and distinct parcels. 15. Appellants carried its burden of proof under Pennsylvania law, and the standards and criteria set forth in the North Middleton Township Zoning Ordinances, entitling it to approval of its Application. Consequently, Appellee abused its discretion in denying the application. The denial constituted an error of law. WHEREFORE, Appellants request this Court to exercise its powers under 53 P.S. § 11006- A, set aside the decision of the Appellee, and grant Appellant's Application for Dimensional Use as requested. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO By ~~) Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D, No. 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Appellants Date: June 2, 2004 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served this date by as follows: VIA CERTIFIED MAIL Zoning Hearing Board of North Middleton Township 2051 Spring Road Carlisle, PA 17013 VIA FIRST CLASS MAIL Michael Rundle, Esquire Solicitor of the Zoning Hearing Board 2051 Spring Road Carlisle, PA 17013 MARTS~RFF WILLIAMS & OTTO By ~ ~ Dated: June 2, 2004 EUGENE E. FAILOR, SR., JOHN E. FAILOR, SR., SARAH MYERS LAWRENCE M. FAILOR, and CHARLENE SHAFFER, Appellants ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CIVIL TERM NO. 04-2499 CIVIL TE~M LAND USE APPEAL WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) ,' COUNTY OF CUMBERLAND ) SS. TO: Zoning Heating Board of North Middleton Township We, being willing for certain reasons, to have certified a certain action between EUGENE E. FAILOR, SR., ET AL. and the ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to ourj udges or 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 GI~ORGE E. HO~?~R, P.J. our said Court, at Carlisle, PA, the2kl~ day of JU~ ,2004. Prothonotary · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. 1. Adicle Addmss~ to: ZONING HEARINGBOARDOFNORTH MIDDLETON TOWNSHIP 2051 SPRING ROAD CARLISLE, PA 17013 04-2499 Civil Term 7BB;3 BS~B BBBB 1,D79 8?82 A. Signature Yes [] No 3. Service Type ~ ~_-~ f : i ~ .~Cerlified Mai¢ i [] E,~ess U~ ~ R~istered "~; ~ ~arn R~pt for Merchandi~ ~ Insur~ Mail ~ C.O.D. A C~gstricted Delivery? (Extra Fee) i--I Yes (Transfer from service labe/) 7002 0860 0000 1074 0782 PS Form 3811, August 2001 Domestic Return Receipt 102595 02-M-1035 UNITED STATES POSTAL SERVICE First-Class Mail Postage & Fees Paid USPS Permit No. G-10 · Sender: Please print your name, address a~d ZIP+4 in this box · PROTHONOTARY CUMI3ERLA~D COUI'JT"¥ COUR'I'HOUSE ONE COU~' HOUSE SQLARE CARLISLE. P'\ 170!3-33~7 EUGENE E. FAILOR, SR., JOHN E. FAILOR, SR., SARAH MYERS, LAWRENCE M. FAILOR, and CHARLENE SHAFFER, Appellants ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-2499 CIVIL TERM LAND USE APPEAL RETURN OF WRIT OF CERTIORARI AND NOW, comes the Appellee, the Zoning Hearing Board of North Middleton Township, by the Codes Enforcement Officer in and for the Township of North Middleton as custodian of the records of said Board, and returns herewith the Writ of Certiorari issued June 2, 2004, and submits herewith the following documents as the record of the proceedings held before said Board: Copy of Request for Zoning Variances of Sarah Myers, et al. Copy of Proof of Publication from The Sentinel for the hearing held March 2, 2004. Copy of Proof of Publication fi.om The Sentinel for the hearing held April 6, 2004. Copy of map showing locations of posting of notice on the property of the Appellants. Copy of Decision dated May 4, 2004. Copy of Board Minutes of March 2, April 6, and May 4, 2004. Transcript of testimony of hearings held March 2 and April 6, 2004 with exhibits. ~;t~lesMl~nF;og~eYment ~fficer 0 0 Township of North Middleton CERTIFICATE OF SERVICE I hereby certify that I have this date served the foregoing Return of Writ of Certiorari (without actual documents recited therein) as filed this date with the Prothonotary of Cumberland County by sending a copy thereof to the persons and in the manner set forth below: Service by first class mail to: Carl C. Risch, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Attorney for Appellants Date: ~.~ 2-~- ,2004 Michael R. Rundle, Esquire Pa. I.D. No. 27768 Solicitor, Zoning Hearing Board of North Middleton Township 2051 Spring Road Carlisle, PA 17013 REQUEST FOR ZONiNG VARIANCES FOR SARAH MYERS, LAWRENCE M. FAILOR, JOHN E. FAILOR, SR., EUGENE E. FAILOR, SR. and CHARLENE SHAFFER NORTH MDDLETON TOWNSHIP CUMBERLAND COUNTY, PENNSYLVANIA Property Address: 71 North Middleton Roa;d Carlisle, PA 17013 Prepared by: C.W. Junkins Associates, Coventry Center 2110 Fisher Road Mechanicsburg, PA 17055 Tele: 717-697-8489 ~003- 5:51P~ - : No, l~b NORTH h-/DDT'''-TON cUM~KRLAIqD COUNTY , pENIqsYLV~/{IA zONING ]IEAR/NG APPLICATION I hereby apply for: (identify reqUest and complete OrdiDance section. ) a. ) Varia/~ce ~E ATT~}~D NARRATIVEOrd~nance section201.5.1/.201-6/388 b. ) Special Exception ordinance Section c. ) Appeal from Zon~g officer, other M~nicipal body or ordimance Section_ official. S-abstan~ivs chall.~nge: Va!i~i.ty. ~,o'¢ Ma~/Zon'~ng .Ord~-n~rice' '.. . - Drd~[ance SeC~iO~ Applicant's Name Address phone NO. Address ~A 17324~ ~717 ) . 486-8505 Phone No. (_ _) Applicant's Attorney FRANCIS M. SOCHA 2201 lq. ~d~O~D PA 17%1_0 Location of Property Affected 63NOI{1HMI~-D~---BOAD ~.qTR, PA 17013 . D~taile~ Descriptionof Use of Land: a.) Zoning District A6~'I~"'TLII~ -- b.) Fresent use .sINGLE FAMILYD~{.TNG C.) Proposed'Use $iNG~EFAMILYDW~z.~YNG d.) EXPected Period of Ti~e of use: . .. Reason for Request: (Insert Attachment if Necessary) Ail required additional irhformation and exhibits in compliance ~- ~.ONING F~.~RING ]~O;~RD'S FUNCTIONS of the Midd~eton Township Zoning O].-dinance. 9. FEES a.} Special Use or Variance Request in; (~) Conservation DistriCt *** (2) AgricultUral District (3) Agriculttural Holding District (4) Suburban Residential District (5) Hi-Density Residential District i~mot:nt Due: $ 200.00 b.) ~. o~' $ 2o0.oo Township Official Date Special Use or,Variance R.equest.in..-'' (I)" ~reigh~0r~od ~omme~c~al Distric~ '~ (2) Highway Commercial District (3) Campus Industrial District (4) Industrial Dist-rict (6) Scenic River District Amo~m~ Due; $ 300.00 I c~tifY th~ ~bove information and submitted exhibits tO be true, correct and complete, Any information I have failed to supply may be group,ds for the zoning Hearing board to dismiss application. I or We agree the Hearing by the Board on ~_hi~;' Application may be Tape Recorded rat~er . the Stenographically Recorded. o~t if not Ag~'eed} Aup~cant - owner - Agent PROJECT HISTORY Parker E. Failor, Sr. acquired the subject parcel of land containing 5.475 acres by award of the Orphan's Court Division of the Cumberland County Court of Common Pleas on March 18, 1975. Parker E. Failor, Sr.'s will directed "WHEREAS, in items TWO and THREE of the said last Will and Testament of Parker E. Fallor, Sr., the iExecutrix was directed to convey, in accordance with local Sub-division and Land Use Regulations, his real property to his children, Sarah Myers, Lawrence Failor, John Failor, Eugene Fallor and Charlene Shaffer." Alice C. Clepper, Executrix of the last will and testament of Mr. Failor, Sr. conveyed the subject parcel of land to the applicants herein, Sarah Myers, Lawrence M. Failor, John E. Fallor, Sr., Eugene Failor, Sr. and Charlene Shaffer by deed dated July 27, 1986 and recorded in Deed Book C, Vol. 32, Page 915 (copy provided herewith). The deed further states "WHEREAS, in order to comply with the wishes of Parker E. Fallor, Sr., it is necessary for the Executrix to convey the decedent's real property to the beneficiaries to be held jointly.' This conveyance created a parcel of land upon which presently exist four (4) separate and distinct dwellings, each with it's own well and septic system. All dwellings are served by a common private gravel drive. PRESENT PROPERTY INFORMATION LOCATION -The property is located along the north side of North Middleton Road approximately 1/8 mile east of Waggoners Gap Road, Route, 74. ZONING - The entire tract is Zoned A - AGRICULTLrlL~L OWNERSHIP - Sarah Myers, Lawrence M. Failor, John E. Failor, Sr., Eugene Failor, Sr. and Charlene Shaffer, tenants in common. INGRESS AND EGRESS - Common gravel drive serving four (4) individual residences. PROPOSED REMEDY In order to cany out Mr. Failor, Sr.'s will, a subdivision of the parcel is necessary. To accomplish this, several Zoning Variances and waivers to the Subdivision and Land Development Ordinances are required. This application requests that the Zoning Hearing Board of North Middleton Township grant the following Variances to the Zoning ordinance of North Middleton Township: SECTION 201.5.1 - Application requests a total of four (4) lots; Ordinance permits One (1) lot for each two acres of land, or a maximmu of two (2) lots. SECTION 201~6 - Application requests one lot having a lot width at the building setback line less than 150'. Ordinance requires a MINIMUM LOT WIDTH of 150'. SECTION 308 - Application requests that three of four lots be permitted to front on the existing Private Road serving the four dwellings. Ordinance requires lot access to be provided in accordance with Section 706 of the Subdivisio:a and Land Development ordinance. While not a Zoning matter, the Zoning Hearing; Board is respectfully requested to recommend that the Board of Supervisors grm~t necessary Waivers to Section 706 of the Subdivision and Land Development ordinance provided an approved Private Road Agreement is executed and recorded concurrently with the subdivision Plan. UTILITIES All utilities required presently serve the site. SIJMIvlARY r The following hardships justify the requested relief: The subdivision cannot be configured to provide for public road frontage for each lot; the location of the existing dwellings, the existing access road and the configuration of the land use prohibit public road frontage to Lots No. 2, 3, and 4. In order to maintain the one acre Minimum Lot Area requirement, the minimum lot width (as measured at the building setback line) for Lot No. 2 is less than minimum required. Conditions (erection of improvements) pre-date enactment of the current Zoning Ordinance. AD JOINER NAMES & ADDRESSES Sylvester M. & Doris M. Wilson 101 North Middleton Road Carlisle, PA 17013 (Parcel 29-14-0877-012) Nelson L. Minich, Et Ux 370 South Middlesex Road Carlisle, PA 17013 (Parcel 29-05-0425-071) Robert & Erma Lininger 90 Pine Hill Road Carlisle, PA 17013 (Parcels 29-05-0425-123) Peter J. & Mary L. Buchenauer 150 Pine Hill Road Carlisle, PA 17013 (Parcels 29-05-0425-124) John W. & Susan C. Grenoble 61 North Middleton Road Carlisle, PA 17013 (Parcel 29-14-0877-010) Danny L. Edwards 72 North Middleton Road Carlisle, PA 17013 State of Pennsylvania, County of Cumberland. P ROOF OF PUBLICATION Rich Canazaro, Internet Director of THE SENTINEL, of the County and State aforesaid, being duly SWorn, deposes and says ihs{THE SENTINEL, a newspaper of general circulation in the Borough of Carlisle, County and State afo~resaid, was established December 13th, 1881, since which date THE SENTINEL has been re ul ' or publication attached hereto is exactl-- th g arly msued in said County, and that the -r ..... issues of THE SEU~'~.=- ....... Y .e same as was printed and I)ublish in t p ~.n?.ea notme .--,..~- u. [ne fOllowing Sates, viz _ _ed he regular editions and Copy of Notice of Publication NORTH MIDDLETON TOWNSH p The Sentinel PUSL/c NOTICE Mar=h2,3~4 February 16, 2004 The NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD witi meet on TUESDay March 2, 2004 at 7:00 P.M a he Townshi Mun IccatedaI3051 Spri R P ;C~pa Bu dng the followJ,g appljc~tingorl.Oad,Carlisle.Pa.tOcO.aider Affiant further deposes that he is not interested in Appficetion//04-01 Sarah Myers, Lawre the subject matter of the aforesaid notice or Sr., John E. Fa lot Sr u nce M. Failor Cho-, ...... ., E gene E. Failor, Sr a North Mrddleton T ~[ eshng Variances to the ~=o~.s.~ (u,.,.t~o~';n~ ~°~h~ co~o Sectio. advertisement, and that all allegations in the Develepment) and, Co¢le Section foregoing ,3.0~..(Area and Design Reaulr..,~=~1.6. a~nd Section statement as to time, place and character of publication are true. LOCATION OF PROPERTY; 71 North Mlddleton Road Carlisle, PA 17013 Paul M. Fegley Coria Enforcement Off~Cer the Municipal ~fflce at 243-8550. February 18, 2004 Sworn to a?~lbscribed before me this 18th day of ~ar_~ft20~4. ~ ~ ~ Notary Public My commission expires: ~ D~m~NOTARIAL SEAL AROlE A. NELL, Notary Public Osrl~ale, OuniBe~fancl Oounly State of Pennsylvania, County of Cumberland. PROOF OF PUBLICATION Rich Canazaro, Internet Director of THE SENTINEL of the County and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a newspaper of general circulation in the Borough of Carlisle, County and State aforesaid, was established December 13th, 1881, since which date THE SENTINEL has been regularly issued in said County, and that the printed notice or publication attached hereto is exactly the same as was printed and published in the regular editions and issues of THE SENTINEL on the following dates, viz Copy of Notice of Publication NORTH MIDDLETON TOWNSHIP PUBLIC NOTICE April 6, 2004 The NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD will meet on TUESDAY, April 6, 2004 at 7:00 P~M. at the Township Mun c pa Su d ng located at 205t Spring Road Carlisle, PAtoconsder the fofiow~ng aPP~cagon: Application # 04-01 Sarah Myers, Lawrence M. Failor, John E: Faflor, sr,~ Eugene E, Eailor, Sr. and Charlene Shaffer are requesting Variances to the North Middleton Township Zoning Code Section #20 I.$. 1 (Llrna ohs on Subdivisions and Land Development) and, Code Section #201.6 and Section 308 (Area and Design Requbements and Required Vehicular Access) LOCATION OF PROPERTY; 71 North Mlddleton Rd. Cer0sle, PA 17013 Paul M. Fegiey Code Enforcement Officer Persons requiring special accommodations may con ac the Municipal Office at 243-8550. The Sentinel March 22, 29 2004 Affiant further deposes that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statement as to time, place and character of publication are ~ March 31, 2004 Sworn to an~l.~U'bscribed before me this 31th day of_ / / \ March__~j, ~O~.4. "~. - Notary Public My commission expires:: NOTARIAL SEAL DARCIE A, NELL, Notary Public Car!islet,, CumberLmd Co~mtv APPLICANT'S NAME: APPLICANT' S ADDRESS: OWNERS' NAMES: OWNERS' ADDRESS: LOCATION OF PROPERTY: CASE NO: DATE OF APPLICATION: DATE OF HEARINGS: DATE OF DECISION: BOARD MEMBERS PRESENT: DECISION OF NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD Eugene Failor, Sr. 350 Pine Grove Road, Gardners, PA 17324 Eugene Failor, Sr., Sarah Myers, Lawrence M. Failor, John E. Failor, Sr., and Charlene Shaffer c/o Eugene Failor, Sr., 350 Pine Grove Road, Gardners, PA 17324 63 North Middleton Road, Carlisle, PA 17013 04-1 February 5, 2004 March 2, 2004 and April 6, 2004 May 4, 2004 Henry M. Weeks, Chairman; Chester L. Billman; J. Wolford Herman FINDINGS OF FACT 1. The Applicant is Eugene Failor, Sr., who resides at 350 Pine Grove Road, Gardners, Pennsylvania. 2. The Applicant and his siblings, Sarah Myers, Lawrence M. Failor, John E. Failor, Sr., and Charlene Shaffer, own property situate at 63 North Middleton Road, Carlisle, Pennsylvania. 3. The property was owned by Parker E. Failor, Sr., 'the father of the present owners, during his lifetime. 4. In 1986 the property was conveyed by the Executrix of the Estate of Parker E. Failor Sr. to the present owners as tenants in common. 5. The property consists of 5.475 acres with road frontage on North Middleton Road (Township Road T-495) of approximately 183.40 feet. 6. Situated on the property are four residential dwellings, three of which are mobile homes, throe garages, three sheds, and a swimming pool. 7. All dwellings are serviced by a common private gravel drive from North Middleton Road. 8. The dwellings were erected on the property before 1970 although one or more of the existing mobile homes may have replaced a previous structure. 9. The property is situated in the Agricultural Zone. 10. In the Agricultural Zone the permissible number of'lots into which a parcel may be subdivided is based upon the total acreage of the parent tract. 11. For each two acres of contiguous land held in single and separate ownership on the effective date of the zoning ordinance, one lot may be subdivided from the parent tract, t 12. The Applicant desires to subdivide the parent tract into four separate lots with one dwelling located on each of the lots. 13. The dwellings are currently occupied by Sarah Mye. rs, Charlene Shaffer, Lawrence M. Failor, and James Failor, the son of the Applicant. 14. The Applicant has requested a variance to Article II, Section 204-14.E.(1 ) of the Zoning Ordinance relative to number of lots which may be subdivided from a parent tract.2 15. The Applicant has requested a variance to Article II, Section 204-14.F relative to lot width on one of the four proposed lots. DISCUSSION In Larsen v. Zoning Board of Adjustment of the City of Pittsburgh: 672 A.2d 286, 289 (Pa. 1996) the court set forth the requirements which an applicant must prove to be entitled to a variance under a zoning ordinance as follows: (1) That an unnecessary hardship exists which is not created by the party seeking the variance and which is caused by a unique physical circumstance of the property for which the variance is sought; (2) That a variance is needed to enable the party's reasonable use of the property; ~ The effective date of the applicable section of the zoning ordinance is June 8, 1999. 2T · . he Apphcatmn refers to Section 201.5.1 which is the appropriate section prior to the codification of the Township Ordinances. 2 (3) That the variance will not alter the essentia]l character of the district or neighborhood, or substantially or permanently impair the use or development of the adjacent property such that it is detri~mental to the public's welfare; and (4) That the variance will afford the least intrusive solution. In Hertzberg v. Zoning Board of Adiustment of the City of Pittsbur~_h, 721 A.2d 43 (Pa. 998) the court distinguished a dimensional variance from a use variance with respect to the hardship which must he proven by the Applicant. The court stated that: [w]hen seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations. Thus, the grant of a dimensional variance is of lesser :moment than the grant of a use variance, since the latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation. Hertzberg, supra, at 47. The decision in Hertzberg was clarified in Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001) wherein the court stated: [e]ver since our Supreme Court decided Hertzberg, we have seen a pattern of cases arguing that a variance must be granted from a dimensional requirement that prevents or financially burdens a property owner's ability to employ his property exactly as he wishes, so long as the use itself is permitted. Hertzberg stands for nothing of the kind. Hertzberg articulated the principle that uureasonable economic burden may be considered in determining the presence of a necessary hardship. It may also have somewhat relaxed the degree of hardship that will justify a dimensional variance. However, it did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses. This well-established principle, unchanged by Hertzberg, bears emphasizing in the present case. A variance, whether labeled dimensional or use, is appropriate "only where the property, not the person, is subject to hardship." Szmigiel v. Kranker, 298 A.2d 629, 631 (Pa. Cmwlth. 1972) (emphasis in original). Yeager, supra, at 598. The variance requested to Article II, Section 204~14.E.(1) is clearly not a use variance. The property is currently utilized for residential purposes. This is a permitted use in the Agricultural Zone. 3 The Applicant desires no change in the use of the property. While the Single family detached dwellings are permitted under Article II, Section 204-14.B.(7) of the Zoning Ordinance. variance as to the number of lots into which a parent tract may be subdivided differs from the typical setback or lot size dimensional variance, it is clearly more akin to this type of variance than to a use variance. Under the Ordinance, the Applicant is entitled to subdivide the parent tract consisting of 5.475 acres into two lots. He desires, however, to subdivide the parent tract into four lots. 4 The reason for this request is obvious. There are four residential dwellings situated on the property which predate the applicable section of the Zoning Ordinance:. The dwellings are each occupied · 5 by four separate family members. The Applicant argues that these family members will suffer an undue hardship if the variance is not granted because each occupant is unable to convey his residence without first subdividing that portion of the property on which his or her dwelling is situated from the parent tract. As clearly stated in Yeager~ supra., however, it is the property, not the person, that must be subjected to hardship by compliance with the ordinance. There is nothing to prevent the property from being utilized exactly as it currently is. The property is improved with four separate single family detached residential dwellings. These four dwellings may continue to be occupied for residential purposes. The Applicant has failed to meet his burden of proof that an unnecessary hardship exists with respect to the property, and that a variance is required to enable the reasonable use of the property. The second variance requested relates to minimum lot width. In the Agricultural Zone a lot must have a minimum width at the lot frontage of 120 feet and at the building setback line of 150 feet.6 The Applicant has proposed four lots, one of which, the proposed Lot No. 2, would not meet the minimum lot width requirements of the Ordinance. Because the variance to subdivide the property into four separate lots is denied, and because it is not possible to configure the proposed Lot 2 in a 2-lot subdivision, the variance with respect to lot width must also be denied. To be entitled to four lots the parent tract must be a minimum of 8 acres. Three of the occupants are also owners of the parent tract, while the fourth is the son of an owner. See Article II, Section 204-14.F and Table 2 of the Zoning Ordinance. 4 .D. ECISION The Applicant's request for variances to Article II, Section 204.14.E.(1) and Article II, Section 204~ 14.F is denied. NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD NOTICE: ANY PERSON AGGRIEVED BY THE DECISION OF THE ZONING HEARING BOARD MAY APPEAL TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS DECISION. 5 North Middleton Township Zoning Hearing Board Township Building 2051 Spring Road Carlisle, PA 17013 Minutes of the Zoning Hearing Board March 2, 2004 The meeting was held at the North Middleton Township Building on Spring Road, in Carlisle, PA. Attendance Board Members-Henry Weeks (Chairman), Chester Billman (Vice-Chairman), J. Wolford Herman (Secretaw) Solicitor-Michael Rundle Codes Enforcement 0fficer-Paul Fegley Assistant Codes Enforcement 0~cer-Ryan Hovis Board of Supervisors-Robert Shearer Deb Ruggiero-Reporter Joan Kegel-1801 Suncrest Ddve, Carlisle Chades Junkins-2110 Fisher Road, Mechanicsburg Eugene Failor, Sr.-350 Pine Grove Road, Gardners Chades McCreary-112 Longs Gap Road, Carlisle Charles Shaffer-71 North Middleton Road, Carlisle Peter Buchenauer-150 Pine Hill Road, Carlisle Lawrence M. Failor, Sr.-65 North Middleton Road, Carlisl8 Lawrence M. Failor, Jr.-65 North Middleton Road, Carlisle James Faiior, Sr.-68 North Middleton Road, cadisle Shannon Failor-68 North Middleton Road, Cadisle Mary Wilson & Ralph Kuhn-546 North Bedford Sireet, Carlisle Call To Order Chairman Weeks called the meeting to order at 7:00 p.m. Mr. Junkins stated that there are conflicts with local ordinances when trying to subdivide this property. He testified that the drawing before the Board represents a method for subdividing the property to meet the dictates of the will, and with the fewest necessary variances. He stated that each lot consists of one or more acres of land. He fur[her testified that h~ believed the following two variances are needed: Fronta.qe on a pub/lc road, This is not available since the lots are served by a single private gravel road. Lot #1 does have frontage on a public road, the other three do not, nor can a way be found to get frontage on a public road, according to Mr. Junkins. The number of residences allowed on a private road, Ordinance restricts the number of dwellings that can be served by a private road. Mr. Rundle asked if this was the Subdivision and Land Development Ordinance, not the Zoning Ordinance. Mr, Junkins replied that this was correct; and asked that if the Application were to be granted, the Zoning Headng Board might recommend that this be allowed to go through. Mr. Rundte pointed out that the Zoning Hearing Board is a quasi-judicial body and not an advisory body similar to the Planning Commission, and that this is noi within the purview of the function of this board. Mr. Junkins indicated that he understood t~is. Mr. Junkins continued with his testimony and stated his belief that there are hardships in this case which justify the granting of the variances to the Ordinances: These were provided by Mr. Junkins as being: 1.) The subdivision cannot be configured to provide public road frontage for each lot. 2.) In order to maintain the minimum one acre Ist requirement, the minimum lot width for Lot #2 is less than the minimum requ!red by the Ordinance. Mr. Rundle asked Mr. Junkins to point this out on the sketch. Mr. Junkins pointed out the measurement depicting the frontage of Let #2 at 137.25 feet and noted that this is Jess than the 150 fo.or limit. He added that it is not possible to get to 150 feet. Mr. Rundle asked about Lot #-4. Mr. Junkins indicated that this lot doesn't have the frontage either. 3.) These conditions predate the Ordinance, and in order to create separate lots for each dwelling unit by subdivision,, relief from the Ordinance is necessary. Mr. Rundle asked for'the dates that the various structures were put on the property. Mr. Junkins replied that he would call the Failors to testify to ~hat: He indicated that he had no further testimony to read into the record. Mr. Rundle asked if any Board member had a question for the witness. None were offered. Mr. Rundle asked if any member of the public had a question for the witness. One person in attendance responded. He stood, and identified himself as Ralph Kuhn of 546 N. Bedford Street, Carlisle. He asked how the Applicants can get something subdivided if they don't own some of the land. Mr. Rundle asked Mr. Kuhn if he intended to Mr. Rundle asked the Board if they had any questions. None were offered. Mr. Rundle asked if any member of the public had a question for Mr. Failer. No member of the public came forward. Mr. Rundie asked Mr. Junkins for his next witness. Mr, Junkins had no more witnesses. Mr. Rundie asked Mr~ Fegley if he wished to testify on behalf of the Township. Mr. Fegley was sworn in and identified himself as PauI M. Fegley, Codes Enforcement Officer of North Middleton Township. Mr. Fegley responded to Mr. Weeks' question about the. private lane. He testified that a waiver could be granted for the private lane to allow its use for four dwellings rather than three, if the subdivision were to ~)roceed. Mr. Fegley adUed that along with that, the Subdivision and Land Development Codes require a standing maintenance agreement be put on the print in the form of a note. He further explained that this would allow the Township to not have to accept the private lane as a dedicated road. Mr. Fegley added that this.would be the case until the road would possibly be brought up to Township standards and dedicated. Mr. Rundle asked for any questions from Board members. Mr. Weeks noted that the wel'ls and septic look to be fairly close together. He asked about the necessary permits or inspections for that distance. Mr. Fegley testified that the Township had maintained a three year revolve on the septics, and that to the best of his knowledge, there have been no failures. He further stated that there are provisions in the D.E.P. manuals concerning isolation distances between well heads' and septic areas, and that he suspected alt of these comply with tha(. Mr. Rundle asked if any member of the public had a question for Mr. Fegley. No member of the public came forward. Mr. Rundle asked if any'member of the public wished to offer testimony. One person came forward. She was sworn in and identified herself as Mary Wilson, of 546 North Bedford Street, Carlisle. Mr. Rundle asked about her relationship to this property or adjoining property. Ms. Wilson testified that her mother owns the property that adjoins the property occupied by Charlie Shaffer. She identified her mother as Doris Wilson. Mr. Rundle asked if this would be the property identified as being Owned by Sylvester M. ahd Doris M. Wilson. Ms. Wilson replied that this was correct. Ms. Wilson testified that she believed there is a discreppncy in the survey lines depicted in Mr. Junkins' survey. She stated that there is a difference between the survey provided by Mr. Junkins, and the one' provided by her own surveyor, whom she identified as Mr. Watson. She further testified that she and Mr. Watson had met with the Applicants to try to resolve this, and that she believed there should be no subdivision until the property lines are resolved. Mr. Rundle asked Ms. Wilson ieshe had any exhibits to present to the Board. Ms. Wilson presented a plan. She indicated that this was from her surveyor, Mr. Watson. Mi-. Rundle labeled this as Wilson Exhibit #1. 5 had already spoken to Mr. Junkins. In response to a question from Mr. Weeks, Mr. Junkins stated that he had spoken to Mr. Watson in 1998, and that Mr. Watson had never got'fen back to him. Mr. Rundte asked if the Board had any questions for Ms. Wilson. Mr. Herman'asked about the date of the survey done by Mr. Watson. He noted that there was no date on the drawing. Ms. Wilson testified that it was within the past 2 to 3 years. Mr. Rundte asked Ms. Wilson that if the Board were to grant a continuance, would she call Mr. Watson. He noted that this would be at the expense of Msl Wilson. Ms. Wilson responded that she would. Mr. Rundle asked Ms. Wilson if she was asking the Boar8 for a continuance to present further testimony. Ms. Wilson responded that she was. Mn Rundle explained that testimony would continue from other witnesses, and then the B~ard would decide whether or not to grant the continuance. Mr. Rundle asked if any member of the public had a question for the witness. Mr. Failor indicated that he Wished to ask a question. Mr. Rundle asked that Mr. Failor present his question through Mr. Junkins. Mr. Junkins stated that Mr. Failor was requesting the dates that gardens were planted on the property being claimed. Ms. Wilson gave these dates as the 70's and 80's. Mr. Rundle asked Ms. Wilson if she was re, luting the testimony given by ML Failor concerning the dates that the structures were placed on what the Failors claim as their property, between the dates of 1949-1969. Ms. Wilson testifi8(J that she had no recollection of when those strbctures were actually put there. .Mr. Rundle asked Ms. W son if her family had initiated any litigation with the respect to the property line or the location of the mobile home on Lot #1. Ms. Wilson stated that none ha,,; been filed. Ms. W son had no further testimony. Mr. Rundle asked if any meml~er of the public wished to offer testimony. No member of the public came forward. Mr. Rundle asked Mr. Junkins if he wished to call a rebuttal witness. Mr. Junkins called Eugene'Failor. Mr. Junkins asked Mr. Failor if any lawsuits had been filed against the Failor family to contest the location of the buildings. Mr. Failor's response was, "no sir," Mr. Failor referred to a building that had been placed on the Wilson property by Charlie. Shaffer, with pe_rmission from Sylvester Wilson. Mr. Failor testified that this is the building Mr. Kuhn has had a problem with. Mr. Junkins asked Mr. Failor if he has been approached by anyone about a lawsuit since his survey that was done in 1998. Mr. Failor's response was, "no sir." Mr. Junkins had no further questions. At 8.'~5 p.m., ~I/[r. Hfeeks stated that it was the Board's decision that this hearing will be continued until the next meeting on April 6, 2004, at 7:00 p.m. Approval of Minutes For June 3, 2003 and January 6, 200,] Regarding the minU'tes from the June 3, 2003 meeting, ~; Herman moved to accept the minutes. This was seconded b~Mr. Bil/man~ and the minutes were approved as presented. Regarding the minutes from the January 6~ 2004 meeting, Mr. Herman moved to accept the minutes. This was seconded by Mr. 8illman, and the minutes were approved as presented. Adjournment With MO f~rther business before th= Board at this time Mr. Billman made a motion to adjoun~. This was Seconded hy /~fr. Herman, and the meeting adjourned at 8.'f6 p.m. Respectfully Submitted. J. Wolf°rd Herman Secretary North Middletan Township Zening Hearing Board Michael S. Medvid Recording Secretary North Mi dleton Townshi~~ Carlisle, Pti' 17013 Minutes of the Zoning Hearing Board April 6, 2004 The meeting was held atthe North Middleton Township Building on Spring Road, in Caflisle, PA. Attendance Board Members-Henry WeekS (Chairman), Chester Biilman (Vice-Chairman), J' (Secretary) Solicitor-Michael Rundie Assistant Codas Enforcement Officer. Ryan H°viS Board of SuperVisors-Robert Shearer Wotford Herman Deb Ruggiero-Reporter Joan Kege1-1801 Suncrest Drive, Carlisle charles Junkins, Lan'd Surveyor-2110 Fisher Road, Mechanicsburg Eugene Faiior, Sr.-350 Pine Grove Road, Gardners Chades McCreary-112 Longs Gap Road, Carlisle Charles Shaffer-71 North Middleton Road, Carlisle James Fa/lot, Sr.-68 North Middleton Road, Cadisle Shannon Fail°r°68 NoAh Middleton Road, Carlisle Mary Wilson & Ralph Kuhn-546 North Bedford Street, Carlisle John W. Grenoble-61 North 191iddtaton Road, cadisle Carl Risch, Attorney-10 East High Street, Carlisle Cad D. Bert-Carl D. Bert & Associates/for Dauphiq Oil Company William W. Wolfe, jr.-Cad D. Bert & Associates/for Dauphin Oil Company James Rutledge-Dauphin Oil Company Call To Order Chairman Weeks called the meeting to order at 7:00 p.m., and lead the Pledge of Allegiance. Continue Hearing For Variance #04-01~ 71 North Middleton Road Mr. Weeks noted that this matte~' was a continuation of the hearing from, the March 2, 2004 meeting. Mr. Rundle asked Mr. Risch to come forward. Mr. Risch was present to represent the Failers. Mary Wilson was also asked to come forward. Mr. Rundle stated that the purpose of the one month continuation was to allow Ms. Wilson an opportunity to prepare testimony and evidence to pre.sent to the Board, in the event she wished to object to the granting of the vadance application. Mr. Rundle asked Ms. Wilson if she had any testimony to present. Ms. Wilson responded that her surveyor was unable to I~e present at this meeting. She stated that she had no objection to the granting of the variance, but added that she would appreciate a condition thai the property line be settled first. Mr. Rundle asked Mr. Risch if he wished to present any evidence to the Board. Mr. Risch presented a letter sent to him by the Wilson's attorney. He indicated that the letter sets forth in writing the position of Ms. Wilson. Mr. Rundle closed the record at 7:05 p.m. Mr, Risch made a brief closing argument..There was a brief discussion on how to proceed. Mr. Weeks suggested going into executive session later and moving on to the second headng. Mr. Weeks suspended the hearing at that time. Mr. Rundle pointed out to Mr. Risch that the Board has 45 days to render a decision and that a decision would be renSered within that time. Hearing For Special Exception #04-02~ Dauphin Oil Coral)any Mr. Rundle read from the Application. Mr. Carl Bert was present to rep~;esent the Applicant. Mr. Rundle asked Mr. Bert to clarif7 if the Applicant was James Rutledge personally, or Dauphin Oil Company, Incorporated. Mr. Bed responded that the Applicant is Dauphin Oil Cornpany, Incorporated. Mr. Rundle continued and read that this is an application for Special Exception under Article II, Section 204-20-C.2. He identified the owner of the property as Carlisle Developers, Incorporated. The property is in the Highway Commercial zone; with the present use being a vacant garage. The proposed use is for a 70' by 100' auto repair facility, and a 30' by 60' office building, for an indefinite period of use. The purpose of the hearing is to obtain the Special Exception necessary to construct the facility. A fee of $300 has been paid and the Application was filed on March 16, 2004, as read by Mr. Rundle from the Application. 2 Mr. Bert came forward and was sworn in. He identified himself as Carl D. Bert, a professional land surveyor and President of Carl D. Bert & Associates of Shippensburg, Pennsylvania. He stated that he was present to represent Dauphin Oil Company, and that his company had been hired to prepare the Application and land development plans. Mr. Rundle referred to the site plar~ that had been handed out to the Board and labeled this as Applicant's Exhibit #1. Mr. Rundle referred to the plan being displayed on the easel and asked if it was a blowup of the same plan. Mr. Bert responded that this was correct, and that some color had been added. Mr. Bert testified that at the time of the filing of the Application, the property was under the ownership of the Schock Oil Company, but the Application was filed under the name of' Carlisle Developers, Incorporated. Mr. Bert further explained that this was because of an anticipated transfer' of the property to Carlisle Developers, Incorporated. Mr. Rundle asked if this property is a portion of a larger prol~erty. Mr. Bert testified that the property is approximately twice this size and extends to Louther Street. He added that it has been transferred to Carlisle Developers, since the Application has been filed. He further stated that a subdivision plan has . been submitted to the Township that would subdivide the property into two tracts. This plan is currently working its way through the approval process, according to Mr. Bert. I--le stated that Dauphin Oil Company has a sales agreement to purchase the portion of the property in question, and is the equitable owner of that portion of the property. Mr. Rundle asked if it was correct that the request for Special Exception being made is contingent upon the approval of the subdivision plan and the purchase of the property by Dauphin Oil. Mr. Bert replied that this was correct and that the Application is only for this portion of the property. Mr. Bert pointed out James Rutledge of Dauphin Oil, who was present and explained that Mr. Rutledge operates an existing auto repair business on South Hanover Street. Ha went on to state that Mr. Rutledge's property has been sold for the purpose of constructing a drug store on that property. Mr. Bert noted that Mr. Rutledge wishes to move his facility to the new location, and in order to do that, a Special Exception is required. Mr. Bert testified that he believed the Application to fit the criteria for Special Exception. He stated that the property is 2.8 acres, and fronts on the Newville Road. He explained that the Applicant wishes to construct a 70' by 100' auto repair facility with six bays, offices, and a waiting room. Mr. Bert went on to explain that the other facility would be the primary office for Dauphin Oil CompAny, and. would include offices for managers, and a place for customers to pay bills. He stated that the office fits the Highway Commercial zone, but a Special Exception is needed for the auto repair business. He noted that the Application deals with Section 204-20-C.2 of the Ordinance. Mr. Bert indicated that he was going to refer to the questions in Section 204-55. He went through each item as follows: 3 /tern A.' All service and all repair activities will be conducted completely within the enclosed building. Nothing will be done outside, according to the testimony of Mr. Bed. /tern B: No drive-through services will be provided at this site. Mr. Bed: referred to the site plan and explained that vehicles will enter through the east end of the building and exit through the west side, after the service is completed. He pointed out a parking area on the north side of the building where vehicles would be left until customers can pick them up. Mr. Rundle labeled as A ' ' ' ppkcants Exh bit #2 the schemakc show ng the floor plans and exteriors of the buildings. This item had also been provided ~by Mr. Bert. Mr. Bert stated that he d~dn t fee that a pub ic drive-through, in the truest sense of the word, was being proposed as compared to what a bank would have. /tern C:The facility will be of sufficient size to store all parts, equipment, and supplies used or discarded as part of the repair services inside the facility. /tern ~: Mr, Bert referred to Exhibit #1 and noted that it includes a summary of the impervious areas and a tabulation of the parking facilities. Mr.' Rundie pointed out that this sectic,n talks about adjoining residentially zoned properties. He asked about the adjoining property to the east listed as being owned by Jeffrey S. and Mary B. Austin. Mr. Bert testified that this property is in the Borough of Carlisle and that the Borough line is on the eastern edge of the Applicant's property. He pointed this out on the exhibit and stated that he believed the adjoining property to be residential. Mr. Rundle asked about the zoning district of the other portion of the property to the north, which is owned by Carlisle Developers. Mr. Bert responded that he believed this property to have been recently rezoned as residential Mr. Rundle asked about the property owned by the Petsinis family to the west. Mr. Bert stated that this is Highway Commercial and is occupied by a restaurant. Mr, Rundle asked about the properly across Newville Road. Mr. Bert responded that this property is owned and,operated by Dauphin Oil Company. Mr. Rundle asked about the screening with respect to adjoining residential properties. Mr. Bert pointed out the locations of proposed screening on Exhibit #1. Mr. Rundle asked why screening does not go across the entire northern portion of the property. Mr. Bert replied that the intention is to screen the auto repair facility and not necessarily the office building. Mr. Rundle asked if the auto repair facility would be visible from the residential area adjacent to the north west corner of the property. Mr. Bert said it would not be visible due to the elevation of the northern boundary of the property. He added that the location where the screening stops was chosen arbitrarily, and that this could be addressed on the land development plan. Mr. Bert also stated that the north west Corner is wooded, and that this is a reason why th~ screening does not go the Whole way across the northern portion of the property. He added that the Applicant is open to whatever is required by the Township. /tern E: Mr. Bert testified that no unlicensed vehicles would be stored on the property. 4 ~tern ~: Ventilation coming out of the facility would likely go to the north of the property, toward a residential area. Mr. Bert acknowledged that this could be a bit of a problem, but that there is plenty of room between the facility and the residential area, and that venting would be minimal. Mr. Rundle noted that this Would be a variance asked if there was any reason why the ventilation couldn't be ve,*+" · .,eu to the west. Mr. Bert stated that this would be possible. ~tern G.'AII vehicles would be removed from the property upon completion of the repairs. /tern H: No vehicles will be junked or demolished on this property. /tern/. The storage and disposal of materials will be accomplished in a manner that will comply with all state and federal regulations, according to the testimony of Mrl Bert. ' At this time Mr. Bert indicated that he wished to address the comments in Section 204-125.C.(1).(a-c). He referred to Exhibit #2 and noted how it depicts the auto repair facility and the office facility. Mr. Rundle asked Mr. Bed to move on to the general criteria for Special Exception ir~ Section C.(2). Mr. Bert commented on these as follows: /tern fa.): The proposed repair facility is in the Highway Commercial district and several of the permitted uses in this district are similar to the proposed ~Jse. Mr. Bert described some or the nearby businesses as being auto sales lots, restaurants, parking lots, etc. It~rn ('b.).'The proposed auto repair facility will not detract from the use and enjoyment of the adjoining residential properties because the building will meet the setback and buffer zone requirements. Mr. Bert added that the proposed facility will be replacing an existing vacant garage which is in poor condition. /tern ('c.): The proposed repair facility is consistent with the character of thE; neighborhood in which it is located. Mr. Bert described some of the nearby 5usinesses. /tern ('~).'Adequate public facilities, as in water, sewer, gas, and electric, are available. Mr. Bed also added that, ('e..) the property is not Jn a flood plain, (f.) is in compliance with Article IV of the Ordinance, and ('g..) is similar to other businesses, and will not impair the integrity of the Township's Comprehensive Plan. Mr. Rundle asked if any Board member had a question for Mr. Bert. Mr. Henlan asked for Some explanation of the elevation at the north west area of the property. Mr. Bert suggested that Mr. Wolfe be sworn in to respond to Mr. Herman's inquiry. Mr. Weeks asked if Mr. Bert could answer "yes" to compliance with Section 204-20.(e-p). Mr. Bert located this section of the Ordinance and responded, "yes." The Board had no more questions. Mr. Rundle asked if any member of the public had a question for Mr. Bert. No member of the public came forward. Mr. Bert had no further testimony. Mr. Bert asked Mr. Wolfe to come forward. The witness was sworn in and identified himself as William Wolfe, Jr., an engineer for Cad D. Bert & Associates. Mr. Wolfe responded to Mr. Herman's question about the elevations. Mr. Wolfe testified that the intervals between the contour lines is two feet. He described the high point to the north of the property as being 482 feet, and the Iow portion of the north west corner of the property as being 462 feet, with a difference of 20 feet. Mr. Herman asked if it was correct that the area to the west of center point is partially screened by trees and so forth. Mr. Wolfe responded that this was correct and described this area as a natural barrier. He pointed out a wavy line on Exhibit #1 'that depicts an existing wooded area, and stated that no construction is to go beyond the 50' setback line in the north west corner of the property. Mr. Rundle asked what screening would be installed. Mr. Wolfe stated that the screening would be consistent with the Ordinance, but hasn't been specifica!ly determi~ed yet. Mr: Herman indicated that he had driven past this area and observed that it seems to be wooded. He asked if it was correct that the wooded area at the north West comer of the property would not be completely removed. Mr. Wolfe responded that this was correct. The Board had no fur[her questions. Mr. Rundle asked if any member of the public had a question for Mr. Wolfe; No member of the public came forward. Mr. Bert called Mr. Rutledge to testify. The witness was sworn in and identified himself as James William Rutledge, a stockholder and President of Dauphin Oil Company. He stated that Dauphin Oil Company's bulk facility is located across the street and is also in North Middleton Township. He noted that no gasoline is stored there, and that no petroleum storage is proposed at the new fa¢..ilib/. He explained that the current auto repair facility and office is at 429 South Hanover Street. Mr. Rutledge went on to provide the historical background of his business, and noted that the company has been in business in the Carlisle area since 1928. Mr. Rutledge testified that the new facility will be built from scratch and will be better than the current facility in Carlisle. He noted that a sanitary sewer and storm sewer run through this area. He further explained that nothing can be built over these and that this is why a separate office building is being proposed. Mr. Rutledge pointed out the location of the sewers between the two buildings. Mr. Weeks asked if there were any concerns about security. Mr. Rutledge indicated where a fenced area would be installed to the west of the building. He referred to earlier testimony that indicated there would be d The Board went into executive session at 8:05 p.m. for discussion on the previous hearing. Discussion lasted approximately 20 minutes, with the decision on this matter to be rendered at the next Zoning Hearing Board meeting. Apl~roval of Minutes Fo.r March__~2 2--004 Regarding the minutes from the March 2, 2004 meeting, Mr. Weeks asked for any changes or corrections. None were requested. Mr. Bi#man moved to accept the minutes. This was secot.~ded hy Mr. lfermaa, and the minutes for the March 2, 2004 meeting were approved as presented. With no further business before the Board at this time Mr Billman made a motion to adjourn. This was Seconded by Mr. Herman, and the mee~g adjoumed at 8:25 p.m. Respectfully Submitted, J. Wolford Herman Secretary North Middleton Township Zoning Headng Board Michael S. Medvid Recording Secretary North Middleton Townsh Township Building 2051 Spring ROad Carlisle, PA 17013 Minutes of the Zoning Hearing Board May 4, 2004 The meeting was held at the North Middleton Township Building on Spring Rcad, in Carlisle, PA. Attendance Board Members-Henry Weeks (Chairman), Chester Billman (Vice-Chairman), j. Wolford Herman (Secretary) Solicitor-Michael Rundle Assistant Codes Enforcement OffJcer-Ryan Hovis Carl Risch, Attorney-10 East High Street, Carlisle Jere Lahey-195 Faith Circle Kathy Lahey-195 Faith Circle Call To Order Chairman Weeks called the meeting to order at 7:00 p.m., and lead the Pledge of Allegiance. _Continue Hearin~l For Variance & Dec.J_~.ton #0 .a-01, 71 North Middleton Roa,a Chairman Weeks asked for any further discussion on this matter. Mr. Herman and Mr. Billman offered no further discussion. Chairman Weeks noted that the Applicant had made a request for a variance to divide a 5.47 acre lot into four (4) lots. He referred to Section 204-14-E.1. Cha~i.rman Weeks asked for a motion. Mr. Herman mo..red to disapprove fhe variance, .due to concerns about the number of issues not he/rig in compl/anco w/th Township Zoning Ordinances. Mr. , - be/ng; /ot size, Property lines, and .** -- ......... Herman md/cared his COncerns as proxim#v. R;~ ........ -~, J ....., ,uur Wells ertl7 fOUl, septic tanks being in such c/ose -~. MI' .... ...,a,, ~[;~noegl rne motion. Chairman Weeks asked for any further discussion. None was offered. kit, Norman and lift. Bi#man voted in favor of the motion to disapprove tho request f~r ' T~e mot/on can'/ed. rVlr. Rundle noted that the other variance requested COncerned lot width for Lot #2, and referred to Section 204-14.F. Chairman Weeks asked for a motion. Mr. Herman moved to deny tho valance Concern/~ lot ~dt~ for Lot #2. Mr. B/l/man seCOnded the mot/on. Chairman Weeks asked for any further discussion. None was offered. Mr. Herman and Mr. B/I/man VOted In Favor of the mot/on to dony tho request for a variance. The mot/on cart/ado ~Minutes Fo_rr Al~ril 6 2__~004 Regarding the minutes from the April 6, 2004 meeting, Mr. Weeks asked for any changes or corrections, None Were requested. Mr. B/l/man moved to accept the minutes. W~ere approved as presented. This was seconded by Mr. Herman. and the minutes Chairman Weeks noted that the hearing originally planned for this meeting will be conducted at the next Zoning Hearing Board meeting on June I, 2004. (7'he headng was Postpone~ lo allow time for l'he prope/fy to be postec~.) seconded bv Mr. BiI~ ~ at this tim. Mr. ne~ - · .,wr~ng aa/~rn~ at ~'fOp. m. ~ Urn. This Michael S. Medvid ,Recording Secretary Respecffufly Submitted, J. Wolford Herman Secretary North Middleton Township Zoning Heedng Board 2 ATTACHMENT #1 NORTH MIDDLETON TOWNSHIP SUPERVISORS CUMBERLAND COUNTY 205'i SPRING ROAD CARLISLE, PA 170'~3 RECORD OF ATTENDANCE MEETING~~~~~L N_._AME 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 IN RE: VARIANCE VOLUME 1: NORTH MIDDLETON TOWNSHIP ZONING HEARING EOARD CARLISLE, PENNSYLVANIA - NUMBER 04-01 71 NORTH MIDDLETON ROAD ORIGINAL TRANSCRIPT OF PUBLIC HEARING BEFORE THE ZONING HEARING BOARD OF NORTH MIDDLETON TOWNSHIP (PAGES 1-37) DATE: MARCH 2, 2004, 7:00 P.M. PLACE: ZONING HEARING BOARD: NORTH MIDDLETON TOWNSHIP HENRY WEEKS, CHAIRMAN CHESTER BILLM3~, MEMBER J- WALFORD H ERMAN, MEMBER SOLICITOR: MICHAEL R. RUNDLE, ESQ. 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 INDEX WITNESSES CHARLES W. JUNKINS RALPH KUHN EUGENE E. FAILOR, SR. PAUL FEGLEY MARY WILSON EUGENE E. FAILOR, SR., RECALLED EXHIBITS WILSON EX. NO. 1- DRAWING WILSON EX. NO. 2- DEED pAGE 5 10 11 17 19 29 21 22 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 THE CHAIRMAN: We are in session. We have an application tonight, 04-01. Then our attorney will conduct a hearing and obtain testimony from people. We have the floor open. This is Terry and Sarah Myers. Are you Gene Failor. It's for a variance and attachment. And think it should be 2004-40. MR. FEGLEY: The proper section of the code the proper section of the code for which the variance is requested is 204-14.E. (1) and 204-14.F. THE CHAIRMAN: The applicant,s name is Eugene Failor, 350 Pine Grove Road, Gardners, PA. And the attached sheet here addresses this. The location of the property is 63 North Middleton Road in Carlisle. The zoning district is agricultural, single family dwelling. How much do we need? MR. RUNDLE: In fact, it is in an agricultural district and the fee has been paid -- it is $200. The date of filing of the application was February 5, 2000. That will do it. For the public this evening -- since I see a number of people here -- I want to explain how this hearing is conducted. The applicant, through the applicant,s representative, elicit testimony under oath concerning 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 the application. He will ask questions, basically, and answers will be given. After that, the board members and I will be given the opportunity to ask questions of the witness. Once we are done with that, if there is any member of the public here that wishes to ask a question of a witness, I would ask that you raise your hand, will point you out. You will identify yourself and you will then ask the question, if you have one. Once we are done with. the applicant.s testimony, if there is any member of the public here that wishes to present testimony, I would again at that point in time ask you to raise your hand, I would call you forward, you will be placed under oath and you will then be able to testify as to what factual matters you feel are appropriate for this board to cc, nsider on the application. With that said, I would ask first, Mr. Fegley, has this hearing been properly advertised in accordance with the statute? MR. FEGLEY: Yes, it has. MR. RLrNDLE: And has the property been properly posted? MR. FEGLEY: It has. MR. RUNDLE: And who will be representing 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 the applicant this evening? Your name, sir? MR. JUNKINS: Charles Junkins, J-u-n-k-i-n-s. MR. RUNDLE: Will you be calling one of the owners to testify? MR. JUNKINS: I had not planned that, I would simply ask, if it please the board, I would offer -- sir. MR. RUNDLE: You wish to testify yourself? MR. JUNKINS: Yes. CHARLES W. JUNKINS, called as a witness, being duly Sworn, testified as follows: MR. RUNDLE: would state your name. MR. JUNKINS: J-u-n-k-i-n-s. MR. RUNDLE: business address? MR. JUNKINS: Fisher Road, sir? F-i-s-h-e-r, MR. RLrNDLE: MR. JUNKINS: For the record, sir, if you Charles W. Junkins, And what is your address, My business Mechanicsburg. sir, address is 2110 Pennsylvania. And what is your occupation, I am a professional land 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 surveyor. MR. RUNDLE: And you are here on behalf of the applicant, Mr. Failor? MR. JUNKINS: I am. MR. RUNDLE: Present your testimony. MR. JUNKINS: At the time of filing the application, we presented copies of booklets which we prepared setting forth sort of a history of the property and the reasons for the zoning variances required. Toward the back of that booklet, you would find a map which was prepared which will give a pictorial, if you will, version of how the subdivision is intended to be done. MR. RUNDLE: Do you have another copy of that? MR. JUNKINS: I can give you my copy. MR. RUNDLE: We will have the sketch of that marked as Applicant,s Exhibit Number One. MR. JUNKINS: Is that going to be entered into the record. MR. RUNDLE: It is not entered into the record. You may certainly testify factually to what is in it. I'd rather you not just simply read the whole thing. MR. JUNKINS: The highlights are this. We have currently four dwelling units on a tract of land 7 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 consisting of 5.475 acres along the north side of North Middleton Road. And the address of 63. Parker Failor, Sr., acquired this subject of land, one parcel, by a ward of orphans, court, division of Cumberland County Court of Common Pleas on March 18, 1975. Subsequent to that time, he died. Hi~ Will then directed whereas in items 2 and 3 of the last Will and testament of Parker Failor, Sr., the executrix was directed to convey, in accordance with local subdivision and land use regulations, property to his children, Sarah Myers, Lawrence John Failor, Eugene Failor and Charlene Shaffer. Alice Klipper, executrix of that last Will and testament, conveyed the parcel of land to the same -- those parties -- by deed recorded ~n book C, Volume 32, page 915 of Cumberland County records. The deed further states, whereas, in order to comply with the wishes of Parker E. Failor, Sr., it is necessary for the executrix to convey the decedent,s property for the beneficiaries to be held jointly. This conveyance created the parcel of land upon which presently exists four separate, distinct units, each with its own well and septic systems and all served by one common, private drive. A conflict arises when we try to subdivide his real Failor, 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 because there are conflicts with local ordinances. The drawing that you have in front of you represents our belief that is a method of subdividing it to meet the dictates of the Will and require the fewest variances necessary in order to accomplish that subdivision, that being as subdivided, each lot consists of one or more acres plan. The variances we believe are needed are two, one being for frontage on a public road, which we do not have -- they are all served by one private gravel road -- lot number one does have frontage on a public road, but the other three do not -- nor could we find a way to get frontage on a public road. Secondly, we have it all served by the private road. And I believe the ordinance restricts the number of lots on a private road. MR. RUNDLE: land development ordinance. ordinance, correct? It states, subdivision and That is not the zoning MR. JUNKINS: That is, yes. But we would ask if this application would be granted, that the Zoning Hearing Board might make that recommendation to allow -- MR. RUNDLE: You do understand, sir, that the Zoning Hearing Board is a quasi-judicial body and it's not an advisory body to the Planning Commission. 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 That's not within tlhe purview of the function of this board. MR. JUNKINS: I haw~ seen opinions with suggestions in them. I understand that. We believe that there are hardships here which justify the granting of variances to be awarded, those being, number one, we cannot configure the subdivision to provide public road frontage for these lots because it isn't there. Number two, in order to maintain the one acre lot area requirement, a lot width -- for number two -- is less than the minimum required by the ordinance. MR. RUNDLE: Point out, if you would, what you are referring to on that. MR. JUNKINS: Well, lot number 2 -- it has an area of 1.214 acres. But if you look along the left side of the shaded area at the gravel road, it has a distance of 137.25 feet, which we would consider the frontage of that lot, which is less. Lot number 4, I suppose we should say, that doesn't have the frontage, either, because it sets with the road there. These conditions predate the ordinance. And In order to create separate lots: for each dwelling unit, by subdivision, we believe an ordinance is necessary. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 MR. RUNDLE: Well, do we know when the various structures were placed on the property? MR. JUNKINS: Sir, I'm not aware of those dates. We need to call the Failors. MR. RUNDLE: MR. JUNKINS: testimony to read into the We ask that you do. Yes. I have no further record. I would call Mr. Gene Failor. MR. RUNDLE: Before doing so, does any board member have a question of this witness? Is there any member ,Df the public that has a question of this witness? Yes, sir. If you would stand and give your name. MR. KUHN: My name is Ralph Kuhn. MR. RUNDLE: And what is your address, MR. KUHN: 546 North Bedford Street, sir? Carlisle. get that MR. RUNDLE: Your question, sir? MR. KUHN: Well, I'm wondering how they can something subdivided when they don't own the property they are on. MR. RUNDLE: I'm assuming you are going to have some testimony you want to present in that regard. MR. KUHN: Yes, I do. MR. RUNDLE: Since those facts are not yet 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on the record, why don't we wait until your time comes. Do you want to call Mr. Failor, sir? EUGENE E. FAILOR, SR., called as a witness, being duly sworn, testified as follows: MR. RUNDLE: State your name and your address. MR. FAILOR: Eugene E. Failor, Sr., 350 Pine Grove Road, Gardners, PA 17324. MR. KUHN: Now, Mr. Failor, could you please tell the board the approximate days that these structures were there? MR. FAILOR: '65 I think was the first. They do it by lots. MR. RUNDLE: Let's do it in numerical order. There appears to be a mobile home on lot number one. MR. FAILOR: That was normally on lot number 2 in 1965. Lot number 2, '68. MR. RUNDLE: So that mobile home got put on lot number one in 19687 MR. FAILOR: Yes, sir. He was actually on number 2 in probably 1965, somewhere around there. Lot number 2, 1968. 12 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. RUNDLE: And the house or the one-story dwelling that is on lot number 3 was erected when? lot number 4 MR. FAILOR: Probably 1949, approximately. MR. RUNDLE: And the mobile home that is on was erected when? structures that are there. number one. MR. FAILOR: July of 1969. MR. RUNDLE: Now, there are some other For example, a garage on lot MR. FAILOR: Yes. MR. RUNDLE: Did that predate or come after the placing of the mobile home? MR. FAILOR: MR. RUNDLE: MR. FAILOR: MR. RUNDLE: if there are others here they will be able to. After. Do you know when? I'm not good with them dates. Well, you are the witness, and that want to present testimony, MR. FAILOR: MR. RUNDLE: Ail right. Do you know when the garage was put up? MR. FAILOR: 1980. MR. RUNDLE: There's a metal garage on lot Do you know when that was placed there? MR. FAILOR: It was about 1980, '85. 13 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 MR. RUNDLE: And there's a one-story framed garage on lot number 4. Do you know when that was placed there? early 90s. for you, Mr. some. MR. FAILOR: I would say probably in the MR. JUNKINS: I have no further questions Failor. If the board! wishes to ask you MR. RUNDLE: Who resides, sir, mobile home in lot number one? MR. FAILOR: Charlene Shaffer. MR. RUNDLE: Who resides in the home number 2? in the in lot MR. FAILOR: MR. RUNDLE: dwelling on lot number 3? MR. FAILOR: MR. RUNDLE: home on lot number 4? MR. FAILOR: MR. RUNDLE: My son, James Failor. Who resides in the framed Sarah Myers. And who resides in the mobile Bonnie Saylor. Now, at the present time, the total property is owned jointly by the five children of your father, correct? MR. FAILOR: MR. RUNDLE: Yes, sir. And there are four lots? 14 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 conveyances? Who to be left out? MR. FAILOR: Yes, sir. MR. RUNDLE: What is the intent on the is going to get what lot? Who is going MR. FAILOR: MR. RUNDLE: John Failor. John Failor will what? Not get a lot? MR. FAILOR: Lawrence and John share the lot together. After agreeing between each other, Lawrence is going to buy John out of that eventually. MR. RUNDLE: So the intent then is that -- MR. FAILOR: Lawrence is going to own lot MR. RUNDLE: And lot 3 is going to be Ms. Myers? MR. FAILOR: MR. RUNDLE: Yes, sir. And lot 2, will that be you or your son? MR. FAILOR: That will be my son, eventually. MR. RUNDLE: And Ms. Shaffer will own lot one? MR. FAILOR: Charlene Shaffer. She owns it right now, MR. RUNDLE: Well, you say she owns it 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 right now. She owns the mobile home? MR. FAILOR: Yes, I'm sorry. MR. RUNDLE: Are there any questions board members? from zoning board? (Discussion held off the record.) MR. RUNDLE: You have a question of the MR. SHAFFER: It seems to me it was grandfathered in. MR. RUNDLE: No, sir. The only thing, in your terms, grandfathered in would be such things as a setback for one lot, that being the total lot. These people wish to subdivide that lot. There's no grandfathered in provision with respect to a subdivision of the lot. MR. FAILOR: four lots were not parcel. They intended to MR. BILLMAN: When they gave me this, these already subdivided. MR. RUNDLE: That's correct. It is one separate it into four lots. When was the road put in? I mean, what is the agreement with respect to maintenance, I'm going to call it a single road? MR. FAILOR: That's a private driveway -- it's always been -- but we take care it ourselves. MR. BILLMAN: But once it is subdivided, 16 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 who is going to take care of it? MR. FAILOR: We're going to maintain it on our own. MR. back to the township? MR. FAILOR: MR. HERMAN: sewer on the other lot. BILLMAN: There's no intent to No, sir. I have one. come There's well and MR. FAILOR: We have our own. We've got the septic. We're not sure where the well is, in fact. MR. RUNDLE: Do you want to give some testimony concerning the wells, if you know where they are, Mr. Failor? Why don't you tell us where the well on lot number one. Generally speaking, where is it? MR. FAILOR: In the garage? MR. RUNDLE: MR. FAILOR: MR. RUNDLE: 2? is In the garage. In the garage. Where's the well on lot number MR. FAILOR: Right in. front of the shed there, the front shed in front of the mobile home. MR. BILLMAN: Front, you mean towards the mobile home? MR. FAILOR: Yes, the small shed in front of me. 17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 MR. RUNDLE: And the well on number 4 is where? MR. FAILOR: In the garage -- not in the garage, it would be a block shed. MR. RUNDLE: Block and crate shed? MR. FAILOR: Yes, sir. MR. RUNDLE: Any other questions? you. a question of Mr. Failor? Your next witness? MR. JUNKINS: MR. RUNDLE: Thank Is there any member of the public that has For the record, I see none. I have no further witnesses. Mr. Fegley, do you wish to offer testimony on behalf of the township? township? MR. FEGLEY: MR. RUNDLE: MR. FEGLEY: MR. RUNDLE: MR. FEGLEY: North Middleton Township. Yes, I would. State your name. Paul Fegley. And your position with the Codes enforcement officer, Henry, this is to you, to your question regarding coming up through there. For this subdivision to proceed to the Board of Supervisors, that lane would be a waiver that could be granted for the use of having four dwellings. 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 think the way they look at it -- the whole thing is a waiver, to begin with, that would be granted. With that, along with that, we are -- in the subdivision land development codes there will be a mode attached or directly on the [print with a standing maintenance that allows for the township to not have to take that as a dedicated road. There would be wording in there who would maintain that and how they are being kept. We won't be involved in maintenance until it would be brought up to township standards and brought forward to be rededicated. But until then, there would be a note on there, that we wouldn't be responsible for maintenance for that road. MR. RUNDLE: Questions from board members? THE CHAIRMAN: The wells looked fairly close. What about inspections? MR. FAILOR: The township maintained a three-year revolve on the septics that you are all aware of. To the best of my knowledge, there were no failures out there on those sites. The wells -- there are provisions in the DEP manuals about isolation distances between wellheads and septic areas. I don't see any here that I could look at without going out and physically measuring it. Not having a measurement on the paper, I would suspect these 19 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 all comply with that. MR. FEGLEY: No other questions. MR. RUNDLE: Is there any member of the public that has a question of Mr. Fegley? For the record, I see none. Now, is there any member of the public that wishes to offer testimony here this evening? Yes, ma'am. Do you want to come forward, please. MARY WILSON, called as a witness, being duly sworn, testified as follows: please. Carlisle. MR. RUNDLE: Ma'am, state your name, MS. WILSON: MR. RUNDLE: MS. WILSON: Mary Wilson, W-i-l-s-o-n. What's your address? 546 North Bedford Street, MR. RUNDLE: What relationship, if any, you have to this particular property or adjoining property? property next listed as owned by Sylvester M. do MS. WILSON: My mother owns the adjoining to Charlene Shaffer there. MR. RUNDLE: And that would be the property And Doris M. Wilson? 2O 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 on the deed. MS. WILSON: Yes, because that's the name MR. RUNDLE: MS. WILSON: MR. RUNDLE: So you are here on behalf of? On behalf of my mother. And what testimony, factual testimony do you wish to present? MS. WILSON: Well, I believe there is a discrepancy in the survey lines, Mr. Junkins' survey. According to my surveyor, they are a lot different -- well, not a lot, but a little different. We did get together with them, and my surveyor, Mr. Watson, and tried to resolve this. I don't feel there should be any subdivision done until the property lines are resolved, until there is some kind of resolution to this. MR. RUNDLE: Do you have any exhibits you wish to have this board view this evening? Do you have a survey prepared by someone else? MS. WILSON: Yes, Mr. Watson. MR. RUNDLE: And do you wish to have that marked as an exhibit and offered to this board? MS. WILSON: MR. RUNDLE: Wilson Exhibit Number One. I can do that. We'll have this marked as (Drawing was marked as Wilson Exhibit 21 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 Number One.) would be -- Paul? right MS. WILSON: Where the discrepancy lies I'm not good at east-west. Can you show them, MR. FEGLEY: I'll help. MS. WILSON: Thank you. At this point, here where the driveway meets, according to Mr. Johnson, it goes straight up. And all the rest of them are going at an angle, a right angle there or an angle. I'm not sure how to explain it quite like he did. I wish he could have been here to present it for me because I'm not -- MR. RUNDLE: On the exhibit, what is it you believe to be the property line of your mother? Is it marked on the exhibit? exhibit? MS. WILSON: Yes. MR. RUNDLE: And how is it marked on the MS. WILSON: It goes through the house there, the very first house and part of the garage and up into the corner of that other house on the side there. line? MR. RUNDLE: The dark, somewhat hashed MS. WILSON: Right. MR. RUNDLE: What is it that makes you 22 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe that is the property line of your mother? MS. WILSON: Because of the different angles that the other properties are going in, I don't understand why or how Mr. Junkins came up with that scenario of it going straight up there instead of it at an angle like the rest of the property lines are going in. MR. RUNDLE: Do you have a copy of your mother's deed? MS. WILSON: Yes. MR. RUNDLE: With you this evening? MS. WILSON: Yes. (Discussion held off the record.) MR. RUNDLE: We'll just stand in recess. (Recess.) MR. RUNDLE: We are back on the record. I am now having marked as Wilson Exhibit Number 2 a photocopy, 4 pages of a deed, dated November 12, 1971 between Betsy M. Wilson, as the grantor, and Sylvester E. Wilson and Doris M. Wilson, as the grantee. And I would ask Ms. Wilson if she would identify this document as being a copy of the deed to your parents? MS. WILSON: Yes. (A deed was marked as Wilson Exhibit Number 23 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2). MR. RUNDLE: Now, your parents acquired this property then in 19717 MS. WILSON: Actually, my father acquired it before that. His mother had gotten it off of him and then she gave it back to him. I don't know why that was, why they did what they did. MR. RUNDLE: MS. WILSON: MR. RUNDLE: You are a grandmother? Yes. This d~eed makes reference as the source of title of Betsy as being the same two tracts of land with Sylvester D. Wilson, and wife, conveyed to Betsy in 1947. Is that correct? MS. WILSON: That's correct. MR. RUNDLE: So this property has been in your family, either owned by your grandmother or your family, since at least 19477 MS. WILSON: Yes. i would say approximately in that time frame. MR. RUNDLE: Now, you heard the testimony given earlier by Mr. Failor concerning the placement of a mobile home in a garage on what is called lot number one on their exhibit. And that mobile home appears to be depicted as a house on your exhibit and then a garage behind it? 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. WILSON: Right. MR. RUNDLE: If you can answer this question. If you believe the property line of your mother's property is the hash mark on your Exhibit One, did your family make any objection when the mobile home and garage were placed on the Failor property? MS. WILSON: I don't have a recollection of any of that. I don't know anything about that. MR. RUNDLE: Has your family made any use of the property, which I will refer to as somewhat as a pie-shaped wedge between what you say is the boundary line? Has your family made any use of that? MS. WILSON: We've used the driveway on occasion, and up on the top there., we've had gardens there. I remember as a child, we had gardens there at the time. MR. RUNDLE: By the driveway, which driveway are you referring? MS. WILSON: The one right where the property is. MR. RUNDLE: The driveway that is depicted as a hashed line off of North Middleton Road? MS. WILSON: Yes. And my father had at one time had a junk yard in there and he did have cars all over that area. 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 MR. are referring to, it is not on the own, correct? MS. MR. RUNDLE: Now, that driveway that you it's clearly on your parents' lot and lot that the Failors are claiming they WILSON: Right. RUNDLE: So my question again was, did your family make any use of the pie-shaped wedge that is located between what Mr. Junkins declares as the property line between the two properties and what you say is the property line between the two properties? MS. WILSON: I recall my father having junk cars around that area, yes. wish to give, MR. RUNDLE: MS. WILSON: MR. RUNDLE: ma'am? MS. WILSON: he told me that -- MR. RUNDLE: Watson, And when would that have been? I don't know. What other testimony do you When I was speaking with Mr. Hold on, ma'am. We can't allow you to say what your surveyor told you -- that's called hearsay. Just tell us what you know yourself factually. MS. WILSON: Okay. I know that back in 1942 that the property started as a 23-acre farm. Then in August,'45, that's when the two lots were sold or a 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 lot was sold, there because that was the and then September of '45. That says that there are senior rights first one that was sold off of that farm. MR. RUNDLE: MS. WILSON: MR. RUNDLE: Anything else, ma'am? Not that I can think of. Now, Mir. Junkins, do you have any questions you wish to ask Ms. Wilson? MR. JUNKINS: there a reason Mr. Watson MS. WILSON: meetings he had to be at. MR. JUNKINS: furnished a copy of his drawing? MS. WILSON: about this already. MR. JUNKINS: THE CHAIRMAN: MR. RUNDLE: witness? MR. BILLMAN: THE CHAIRMAN: Yes, I do. Ms. Wilson, isn't here tonight? Yes. He had a couple of other is Is there a reason he has not I know that he spoke to you I understand that. Were there other questions? Are there any questions of the done by Mr. Watson? There's no date marked on here. You don't have the original? MS. WILSON: It was just within the past No. What date was this survey 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 couple of years. (Discussion held off the record.) MR. RUNDLE: Ma'am, if granted a continuance by this board, would 'you call as a witness, the suveyor who prepared this document? Do you understand that that would be at your expense? MS. WILSON: Sure. MR. RUNDLE: Are you asking this board for a continuance to present further testimony? MS. WILSON: Yes. MR. RUNDLE: We will[ continue with the testimony for the other witnesses that are here and the board can decide whether to grant such a continuance. Is there any member of the public that has any questions for this witness? Mr. Failor, you are the applicant here. Your representative has just completed cross-examination. MR. FAILOR: I have a question. MR. RUNDLE: Well, then tell your representative the question you would like to ask. MR. JUNKINS: Ms. Wilson, can you tell the board the approximate dates or years that the gardens were planted and maintained? MS. WILSON: we had gardens in there. MR. RUNDLE: In the 70s. We came out and Is it based upon what the 28 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 Failors 19697 say is their property, anywhere from 1949 through MS. WILSON: I'm not sure. MR. RUNDLE: Do you agree or disagree that the structures specifically placed on lot number one, was placed there in or about 19687 WILSON: I don't know that, actually that mobile home, MS. put there. MR. RUNDLE: Has your family initiated any litigation with respect to the property line or the location of the mobile home on what is shown as lot number one? Has your family brought any lawsuit to have those structures, the mobile home and the houses, moved off of the property? A VOICE: Yes. MR. RUNDLE: Sir, you are not the witness. MS. WILSON: Yes. I did contact my attorney and discussed that with him. MR. RLrNDLE: My question was, has any lawsuit ever been initiated? MS. WILSON: It has not been filed. MR. RUNDLE: Thank you. Any other testimony you wish to present? Is there any other member of the public that wishes to offer testimony? For the record, I see no one raising their hand. 29 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Junkins, witnesses in rebuttal? MR. JUNKINS: MR. RUNDLE: do you wish to call any I do. You are still under oath. EUGENE E. FAILOR, SR., recalled. MR. JUNKINS: Do you recall any lawsuits being filed against you or your family to contest the building. MR. FAILOR: building I can recall of. father -- Charlie Shaffer, No, sir. There's only one Sylvester Wilson, which is her went down there so he could keep the weeds down around the ho'~ses and stuff. He raised some cattle or whatever in that field. That's the only time that Kuhn back there raised caine over not too long ago. He came out there and demanded it be moved. It's not on there. It's on Wilsons' property. That's the building Mary is talking about. The other buildings, it's been on there since the 70s, 60s, whatever. It's been on there ever since Mr. Wilson was alive -- he's dead now. A VOICE: If that property belongs to Wilsons -- so she claims -- why was Sylvester always 3O 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 asking Charlie Shaffer for the right to go up into that field? MR. RUNDLE: Sir, you will be given the opportunity to present testimony. Next question. MR. JUNKINS: Since my survey of 1998, has anyone approached you or a member of the family, to contest the work that we did. MR. FAILOR: No, sir. Everything was on the up-and-up. That little character back there came out one night -- you and I talked about it -- and I had the police up there. And I told him how it was, that it was our property. From then on, we hadn't heard nothing from him. He was challenging it. JUNKINS: I have no further questions MR. for Mr. Failor. MR. RUNDLE: Does any board member have any further questions of Mr. Failor? You have a question? MR. HERMAN: The plan right here has a measurement across the top, lot one, 184 by 181 feet. MR. FAILOR: Yes. MR. HERMAN: Does the deed which you surveyed and laid this out, just give you that point, that's where you established it? MR. FAILOR: In my opinion, it doesn't. The deed of record -- the only way this lot could be 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 established is by surveying this amount of property. That belongs to them using the marks in the ground, so on, and take what's left. That's how this description came about, and it's a common practice that you hold to that distance. MR. HERM~LN: Just for the record, if we could have Mr. Billman look at the record presented. There's a word that says, cow shed, that being the shed that he was referring to. MR. FAILOR: Yeah. I believe it is, yeah. MR. HERMAN: It looks about approximately quite a distance away from the garage? MR. FAILOR: Yeah. But you know, as far as the property, they never took care of the property. We have had to mow down -- Charlie Shaffer had to mow. My father-in-law lived in my property. When my son moved in, they kept it up. Wilsons never took care of that. As far as Mary stands, they maintained. They didn't -- we mowed it. And I have neighbors that can tell you that. MR. RUNDLE: I want to make sure I understand what you have just said about the cow shed. MR. FAILOR: MR. RUNDLE: structure that is labeled, Yes, sir. Are you saying that the cow shed, on Wilson Exhibit 32 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Number One -- MR. FAILOR: Yes, sir. MR. RUNDLE: -- is the building that your family erected in its present location? MR. FAILOR: No, no, no. This gentleman right here. MR. RUNDLE: Don't tell me, this gentleman. Tell me a name. MR. FAILOR: Charlie Shaffer, he built that after he moved to lot number one. MR. RUNDLE: So it is somebody within your family? MR. FAILOR: Yeah. Him and Wilson -- I'll say it Wilson and he agreed to it. That's not our private land. Charlie Shaffer, Charlene Shaffer's husband. MR. RUNDLE: And you agree that that particular structure is not on your property? MR. FAILOR: Yes, sir. Whose drawing is that? Is that Junkins'? (Discussion held off the record.) MR. RUNDLE: Any other questions from the board members? Is there any member of the public that wishes to ask a question of Mr. Failor? Rise, and give me your name, sir. 33 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. MR. you, what is your relationship MR. MR. MR. MR. form of a question, KUHN: Ralph Kuhn. RUNDLE: And Mr. Kuhn, first let me ask to this property? KUHN: I'm married into the family. RUNDLE: You are married to whom? KUHN: Mary Wilson. RUNDLE: You may ask a question, to Mr. Failor. in the you had put You had one, moved those over further than whaJ5 it was supposed to be MR. KUHN: Mr. Failor, am I correct that three trailers up there on that lot of yours? and back in '72, you put another one in and to present at this juncture? other testimony? MR. a proper place to JUNKINS: I do. set a boundary? Wilson deed was entered into the record as an exhibit. And I would like to take just a bit from that deed, if may, for what it is worth. Do you wish to give any This appears not to be But I believe that the MR. FAILOR: MR. KUHN: MR. RUNDLE: Never. That's all I have. Any other testimony you wish moved? MR. FAILOR: Never. MR. KUHN: Never? 34 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 In tract number 2 of the deed, the first several lots beginning at a certain locust tree on the left-hand side of a certain driveway leading from the said above dirt road, which refers to North Middleton Road, a distance of 240 feet to another locust tree. Now, the statement that I wish to be emphasized, thence, in a northerly direction by a line running at right angles to the said dirt road, a distance of 22 feet. That is the line that is in question. And I believe that the survey that you were given by the Wilsons would show that their plan is not quite at right angles. Maybe you don't make property decisions here. For the record, their surveyor, Mr. Watson, did contact me. And I gave him the information that I had. He never got back to me. That was in 1998-1999. And this is the first I have seen anything except his hearsay to me of his findings, which I spoke in hearsay today. He told me that all -- MR. RUNDLE: Don't give us hearsay testimony. Any other factual testimony you wish to present? MR. JUNKINS: May I see his survey? I have no further questions. MR. RUNDLE: And no further testimony? 35 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. JUNKINS: And no further testimony. MR. RUNDLE: And we will ask you, Ms. Wilson, after hearing what was just testified by Mr. Junkins and Mr. Failor, do you have any other testimony you wish to give? MS. WILSON: No. MR. RUNDLE: Go ahead, ma'am. MS. WILSON: Mr. Failor was not being wise when he said he had never seen my survey before. We met with him and Charlie in his trailer. MS. RUNDLE: She has got the floor. MS. WILSON: I met with several of the family members at Charlie Shaffer~s residence with my surveyor, and spoke to them about the problem at the time. We tried to offer a resolution by trading to make it fair, to make it equal, to make it what it should be. And they don't want to. Charlie agrees. He even told our surveyor that -- well, that's hearsay. He agreed at that time that he would be more than willing to do that because he knew that he was on our property. MR. RUNDLE: Anything else? MS. WILSON: I do believe it is on record that there was -- the trailer on top of the hill was replaced at one time. I can't recall the year, but I 36 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe I have a paper that states that. MR. FAILOR: My lawyer has that. MR. RUNDLE: Mr. Junkins, do you have any questions of the witness? MR. JUNKINS: No. MR. RUNDLE: Board members? THE CHAIRMAN: No. We will let the record stand closed. (Discussion held off the record.) (The hearing was concluded at 8:15 p.m.) 37 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 I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within proceedings and that this copy is a correct transcript of same. ah Ruggiero, ~/ ~ Registered Professional Reporter Notary Public 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 NORTH MIDDLETON TOWNSHIP ZONING HEARING BOARD CARLISLE, PENNSYLVANIA IN RE: VARIANCE - NUMBER 04-01 71 NORTH MIDDLETON ROAD VOLUME 2: TRANSCRIPT OF PUBLIC HEARING BEFORE THE ZONING HEARING BOARD OF NORTH MIDDLETON TO~SHIP (PAGES 38 42) DATE: PLACE: ZONING HEARING BOARD: SOLICITOR: MANAGER: ORIGINAL APRIL 6, 2,304, 7:00 P.M. NORTH MIDDLETON TOWNSHIP HENRY WEEKS, CHAIRMAN CHESTER BILLMAN, MEMBER J. WALFORD HERMAN, MEMBER MICHAEL R. RUNDLE, ESQ. APPEARANCES: MARTSON DEARDORFF WILLIAMS & OTTO BY: CARL C. RISCH, ESQ. FOR - MS. WILSON DEBORAH RUGGIERO, RPR REPORTER- NOTARY PUBLIC 39 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 THE CHAIRMAN: We'd like to declare the North Middleton Township Zoning Hearing Board open on its April meeting. (Pledge of allegiance.) THE CHAIRMAN: We have two hearings. We will start with the continuation of the hearing we had postponed until tonight. I'll turn things over to our attorney for the conduct of the hearing to those who wish to present and give testimony. We ask you to do it and to hold back at specific time when the attorney asks you to do so. We will ask for public comments as well at appropriate times. This allows the reporter to get things down accurately rather than to have people talking across each other. We will try to interrupt dialogues between members. She can't possibly get it accurately. So with that, Mr. Rundle? Mr. Risch, you are now here on behalf of the applicant? And is Ms. wilson here? The purpose, if you. recall, of the one-month continuance in this hearing was to allow you to prepare testimony and evidence to present to this Board in the event you wished to object to the granting of the variance application. Do you have any additional testimony? 4O 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. WILSON: Unfortunately, my surveyor is unable to attend this meeting to be able to explain discrepancies. The only thing I'd really have to say is, I have no objection to the variance. My only concern is that the property line be settled and I would appreciate a -- what would you call it -- something stating the variance has been passed with the condition. MR. RUNDLE: So that I understand your position then, you are not objecting to the granting of the variance, as presenting by the applicant? MS. WILSON: No. I just don't want it done without the property right being settled. MR. RUNDLE: Thank you. Mr. Risch, do you wish to present any other evidenc.e or do you wish to make a closing argument? MR. RISCH: The only evidence I would ask is a letter sent to me by the Wilsons' attorney. I think that sets forth the writing. Some of it she just said, but I think it's helpful if you have that. It expresses specifically that they object to the variance. MR. RUNDLE: She certainly has stated that. You wish to add that, Mark, as an exhibit, as an Applicant's Exhibit? Do you wish the record to be closed? MR. RISCH: I would just like to say a few 41 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 things to the Board. There is no more evidence. MR. RUNDLE: Then we: will close the record. Direct the arguments to the Board. MR. RISCH: My name is Carl Risch. I've never made a closing argument before when I haven't given an opening, but I'll do my best. (Mr. Risch closed to the Board on behalf of Ms. wilson.) MR. RUNDLE: Mr. Risch, as you are well aware, the Board has 45 days in which to render a decision now on this hearing, and you can rest assured, it will be limited to that 45 days. MR. RISCH: I just wanted to be sure, if there are any technical questions about the lot configurations, again, I wasn't here for the first hearing, so I assume that most of those questions have been answered, if there are questions. We do have someone who can answer questions about lot configuration or lot size or why things were drawn in a certain way. You folks know better than me. If you understand it, then you understand it. THE CHAIRMAN: Thank you. (This hearing was adjourned until later in the evening.) 42 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 I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within proceedings and that this copy is a correct transcript of same. - ~ Rugglem, Nota~Public '' Exp~r.~0,2~? ! Deborah Ruggler~, Registered Professional Reporter Notary Public